| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. John N. Slone | Chairperson | |
| Mr. Thomas B. Redfern, III | Member | |
| Mr. Lester Echols | Member |
2. The applicant requests, in effect, correction of his military records to show he did not have lost time and to reimburse him all due back pay and allowances. He states that he was in jail but he was found not guilty of the charges.
3. The applicant’s military records show that he enlisted in the Regular Army on 21 September 1999. On 3 January 2000, he was arrested by civilian authorities on charges of one count of assault in the second degree and two counts of criminal mistreatment in the first degree for incidents that occurred prior to his enlistment. He was extradited to Oregon.
4. On 5 July 2000, the applicant was found not guilty of all charges in the Circuit Court of the State of Oregon for the County of Clackamas. He returned to military control on 25 July 2000.
5. On 3 August 2000, the applicant’s commander at Fort Knox, KY initiated separation action under the provisions of Army Regulation 635-200, chapter 11 for entry-level status performance and conduct. The specific reason cited for the action was the applicant’s being out of training for eight months due to a court case where he was falsely accused and found not guilty of crimes against his family. Due to personal issues, the commander was convinced that the applicant would not be able to complete his obligation to the Army and (retention) would only create a bigger problem for him and his gaining unit.
6. On 15 August 2000, the applicant acknowledged notification of the separation action and elected not to make a statement in his own behalf.
7. The appropriate authority approved the recommendation and on 24 August 2000 the applicant was discharged after completing 4 months and 10 days of active creditable service. His Certificate of Release or Discharge from Active Duty, DD Form 214, shows that he had lost time from 3 January – 24 July 2000.
8. The Defense Finance and Accounting Service has charged the applicant with a debt of $2,664.77 as a result of the lost time.
9. The Department of Defense Financial Management Regulation states in Table 3-3 that when a member is confined by civil authorities and is tried and acquitted, then the absence may be excused as unavoidable. Rule 4 of that regulation states that when a member is confined by civil authorities and the absence is excused as unavoidable then the member is entitled to pay and allowances.
CONCLUSIONS:
1. The Board concludes that an injustice exists in this case. It appears reasonable that, considering the seriousness of the offenses for which the applicant was charged, civilian authorities kept him under civil confinement for over seven months. However, he was found not guilty of any of the three charges. It appears the circumstances of the applicant’s confinement should have resulted in his commander excusing his absence as unavoidable and thereby allowing him to receive back pay and allowances for that period of time.
2. The applicant’s chapter 11 separation action was initiated within days of his return to military control. It appears that his commander had no time to initiate action to excuse the applicant’s absence as unavoidable resulting in the applicant’s subsequent loss of pay and allowances.
3. In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by:
a. showing that the applicant’s entire period of lost time was excused as unavoidable;
b. reimbursing the applicant for any and all lost pay and allowances due as a result of this correction;
c. amending the applicant’s DD Form 214, item 29 to read “None;” and
d. recalculating the applicant’s net active service for this period as a result of this correction and amending his DD Form 214, item 12c as appropriate.
BOARD VOTE:
__jns___ __tbr___ __le____ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
John N. Slone
______________________
CHAIRPERSON
| CASE ID | AR2001059873 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011220 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (GRANT) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 123.08 |
| 2. | 128.00 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2003 | 2003088460C070403
Counsel requests that the Board grant the applicant's request to upgrade his discharge to honorable (sic). Public Law 95-126, enacted on 8 October 1977, provided in general that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program. His period of excellent service along with his awards were previously considered by the ADRB when that Board upgraded his Undesirable Discharge to General –...
ARMY | BCMR | CY2009 | 20090010942
The applicant states, in effect, that he is being charged $5000.00 for the time he was AWOL in 2007 and since the AWOL was due to a professionally diagnosed psychiatric disorder, Bipolar Disorder, he is requesting a refund for the entire amount that has been taken out of his pay since March 2008. The applicant's record contains a DD Form 616 (Report of Return of Absentee) which shows he surrendered to military authorities at Fort Bragg, NC on 6 February 2008. The applicant submitted a copy...
ARMY | BCMR | CY2003 | 2003084912C070212
A general discharge is a separation from the Army under honorable conditions. It appears his request was properly denied (his wife did not have a temporary medical problem with other related family problems that could be resolved within 90 days or even 1 year); however, the Board concludes that he clearly had grounds to request a dependency discharge. That all of the Department of the Army records related to this case be corrected by showing that the applicant was separated from the...
ARMY | BCMR | CY2006 | 20060006670C070205
However, the evidence of record shows he was confined by civilian authorities from 31 December 1981 through 14 January 1982. In the absence of evidence that would enable this Board to determine whether his absence (civil confinement) was excused as unavoidable or whether his absence was not excused as unavoidable, the applicant’s period of civil confinement is presumed to be lost time. Therefore, there is insufficient evidence on which to grant the applicant payment for his lost time.
AF | BCMR | CY2004 | BC-2004-02092
The charges against him were dropped due to a lack of evidence. Therefore to avoid a possible injustice to the applicant, we recommend his record be corrected as indicated below. __________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that competent authority determined his absence due to confinement by civil authorities from 6 August 2003 to...
ARMY | BCMR | CY2006 | 20060012322
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2007 DOCKET NUMBER: AR20060012322 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant's last period of unauthorized absence was not excused even though he was allowed to separate with a Hardship Discharge. Yolanda Maldonado ______________________ CHAIRPERSON INDEX CASE...
ARMY | BCMR | CY2007 | 20070002065
The applicant requests, in effect, that his 1 day of lost time and rank be corrected on his DD Form 214 (Report of Separation from Active Duty), dated 1 November 1979. The applicant's records contain a DD Form 214 which shows he was separated from active duty on 11 January 1979, for the purpose of retirement. Evidence of record shows that the applicant's was retired from active duty on 11 January 1979 and placed on the TDRL effective 12 January 1979 with a 30 percent disability rating in...
AF | BCMR | CY2004 | BC-2003-03769
The applicant was held in pretrial confinement from 11 November 2002 to 6 February 2003, causing a total lost time of 88 days. The Air Force also did not err in characterizing the time the applicant spent in pretrial confinement as lost time. Therefore, we recommend that the applicant’s records be corrected as indicated below.
ARMY | BCMR | CY2010 | 20100015532
ARMY | BCMR | CY2001 | 2001061135C070421
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: