IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150000264 


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, in effect, correction of his records to show he was not absent without leave (AWOL) and cancellation of his $1,413.69 Defense Finance and Accounting Service (DFAS) debt.

2.  The applicant states:

* he received a letter from DFAS indicating he was AWOL during the period 18 October 2009 through 23 February 2010 and this is incorrect
* he was honorably discharged from the Army at Fort Bliss, TX
* he signed out from the transition center on 9 September 2009 and started his transition leave – he was issued his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his period of transition leave was from 10 September 2009 through 10 November 2009
* he questions how his status could have been AWOL if he was able to sign out and get his DD Form 214

3.  The applicant provides:

* DD Form 214
* DFAS letter, dated 4 December 2014, regarding:  Indebtedness to the U.S. Government, with account statement


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.  The applicant enlisted in the Regular Army on 10 November 2005 for a 4-year period.

3.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Orders 173-0011, dated 22 June 2009, directed his reassignment to the Fort Bliss Transition Center for release from active duty effective 9 November 2009.  These orders show his final out-processing appointment with the Transition Branch was on 8 September 2009.

4.  Headquarters, Fort Bliss, Orders 288-0006, dated 15 October 2009, revoked Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, 
Orders 173-0011, dated 22 June 2009, under stop loss authority.

5.  His DD Form 214 shows he was honorably released from active duty effective 9 November 2009.  This form was digitally signed by him and the Chief, Transition Point.

6.  The applicant provided a copy of a letter from DFAS with his account statement showing he had a debt in the amount of $1,413.60 due to overpayment of pay and allowances while he was AWOL from the military from 18 October 2009 to 23 February 2010.

7.  DFAS records show:

* he was on transition leave during the period 9 September 2009 through 9 November 2009
* he was AWOL during the period 1 October 2009 through 30 July 2010
* he was returned to duty and discharged on 31 July 2010
* he had 300 days of lost time

8.  His records are void of a DA Form 31 (Request and Authority for Leave) and he failed to provide evidence showing he was authorized transition leave during the period 10 September 2009 through 8 November 2009.

9.  On 24 September 2001, the Secretary of Defense delegated stop-loss authority to the Secretaries of Military Departments.  The stop-loss program allows the Services to retain individuals on active duty beyond their dates of separation.  Those affected by the order generally cannot retire or leave the service as long as Reserve Components are called to active duty or until relieved by the President, whichever is earlier.

10.  All Army Activities (ALARACT) Message 214/2009 (Corrected Copy), dated 4 August 2009, subject:  Stop Loss and Deployment Policy Updates, paragraph 4b(3), stated enlisted Soldiers assigned to deploying units who had an expiration term of service (ETS) prior to the unit's latest arrival date who did not reenlist would be allowed to separate at their ETS.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued valid orders directing his final out-processing appointment on 8 September 2009 and releasing him from active duty effective 9 November 2009.

2.  Although his records do not contain a DA Form 31, the preponderance of evidence – including his DD Form 214 – shows he was on transition leave during the period 9 September 2009 through 8 November 2009 during the time the stop loss orders were issued revoking his release from active duty.  There is no evidence he was made aware of the stop loss and the ALARACT message in effect at the time stated enlisted Soldiers assigned to deploying units who had an ETS prior to the unit's latest arrival date who did not reenlist would be allowed to separate at their ETS.

3.  In view of the aforementioned evidence, the applicant's Master Military Pay Account should be corrected to show he was honorably discharged effective 9 November 2009 and he was not AWOL during the period 18 October 2009 through 23 February 2010.


BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking Headquarters, Fort Bliss, Orders 288-0006, dated 15 October 2009;

	b.  showing he was not AWOL during the period 18 October 2009 through 23 February 2010;

	c.  voiding establishment of any debt associated with the erroneous AWOL period as a result of these corrections; and

	d.  reimbursing payments against the voided debt already paid by the applicant, if any.



      _______ _   _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.



ABCMR Record of Proceedings (cont)                                         AR20140021393





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ABCMR Record of Proceedings (cont)                                         AR20150000264



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