IN THE CASE OF:
BOARD DATE: 30 June 2015
DOCKET NUMBER: AR20140019845
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his military records by showing he was not absent without leave (AWOL) from 25 February through 8 March 1971.
2. The applicant states he came home from the Republic of Vietnam (RVN) on a 30-day leave. His mother got sick and went into the hospital. He got a 15-day extension of leave from the Red Cross.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 4 March 1969, the applicant was inducted into the Army of the United States. He was trained as a radio relay and carrier attendant.
3. On or about 26 September 1969, the applicant departed the United States for duty in the RVN.
4. On 17 December 1969, the applicant was honorably discharged for the purpose of immediate reenlistment. On 18 December 1969, he enlisted in the Regular Army (RA) for 3 years.
5. On 22 March 1971, the applicant accepted nonjudicial punishment (NJP) for being AWOL from 25 February through 8 March 1971 (12 days). He did not appeal the punishment.
6. Unit Orders Number 28, 23rd Infantry Division, dated 25 March 1971, announced the applicant's forfeiture of pay resulting from his NJP as discussed in the preceding paragraph.
7. The applicant departed the RVN in a casual leave status en route to Fort Hood, TX.
8. On 2 May 1973, the applicant was discharged from the RA. His DD Form 214 shows he had a non-pay period from 25 February through 8 March 1971.
9. The applicant's DA Form 20 (Enlisted Qualification Record) shows in block 44 (Time Lost) that he was AWOL from 25 February through 8 March 1971.
10. Army Regulation 635-5 (Separation Documents), as then in effect, provided detailed instructions for completing separation documents, including the
DD Form 214. It required entry of non-pay periods for time lost.
11. The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected by showing he was not AWOL from 25 February through 8 March 1971 because he had received a 15-day extension of his leave from the Red Cross.
2. A review of the applicant's military records failed to reveal any documentation showing he had been authorized leave during the 12-day period in question. However, there is documentation of his acceptance of NJP for being AWOL during the questionable period and for his subsequent forfeiture of pay resulting from his absence.
3. It has been more than 44 years since the subject period of AWOL. Due to the passage of time pertinent information concerning approval of a leave extension that might have been in his military record has been lost or destroyed. Therefore, favorable consideration of the applicant's request is barred by the "Doctrine of Laches."
4. In view of the above, the applicant's request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
____________X___________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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