RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050004803


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his days of lost time be changed on his DD
Form 214 (Report of Separation from Active Duty).

2.  The applicant states that his lost time was added to his Correctional
Training Facility (CTF) program training.

3.  The applicant provides a supplemental letter; a VA Form 10-7131
(Exchange of Beneficiary Information and Request for Administrative and
Adjudicative Action); two DD Forms 214; and a DD Form 215 (Correction to DD
Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 May 1971.  The application submitted in this case is dated
24 March 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 7 August 1969.  He was
honorably discharged on 2 June 1970 for the purpose of immediate
reenlistment. He reenlisted on 3 June 1970 for a period of six years.

4.  On 9 July 1970, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being absent without leave
(AWOL) from 3 July 1970 to 7 July 1970.

5.  On 24 March 1971, the applicant was convicted by a special court-
martial of being AWOL from 23 August 1970 to 1 September 1970 and from 25
October 1970 to 5 February 1971.  He was sentenced to confinement at hard
labor for
4 months, a forfeiture of $50.00 pay per month for 4 months, and reduction
to the grade of private E-1.

6.  Item 44 (Time Lost Under 972, Title 10, United States Code and
Subsequent to Normal Date ETS) on the applicant's DA Form 20 (Enlisted
Qualification Record) shows he was AWOL from 4 August 1970 to 5 August
1970.  There is no record of nonjudicial punishment for this period of
AWOL.  His DA Form 20 also shows he was AWOL from 23 August 1970 to 18
September 1970 and confined from 5 February 1971 to 17 February 1971, 18
February 1971 to
23 March 1971, and 24 March 1971 to 27 May 1971.

7.  The applicant was notified of initiation of separation action under the
provisions of Army Regulation 635-212 while in the Correctional Training
Facility at Fort Riley, Kansas.  The unit commander stated the applicant
was placed in the drug counseling group conducted by the unit social worker
and remained completely negative and hostile towards any efforts at
rehabilitation.  The applicant had emphatically stated that he would not
return to duty under any circumstances.

8.  The applicant was discharged on 28 May 1971 under the provisions of
Army Regulation 635-212 based on unfitness with an undesirable discharge.
He completed 3 months and 21 days creditable active service during his
current enlistment and a total of 1 year, 1 month and 17 days total active
military service.

9.  His DD Form 214 for the period ending 28 May 1971 shows he had 245 days
of lost time for the periods 3 July 1970 through 6 July 1970; 4 August 1970
through 5 August 1970; 23 August 1970 through 18 September 1970; and
25 October 1970 through 27 May 1971.

10.  On 27 January 1972, the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge to honorable.

11.  On 8 June 1977, the ADRB upgraded the applicant’s discharge to general
under honorable conditions under the Department of Defense (DOD) Special
Discharge Review Program (SDRP).

12.  On 8 June 1978, the ADRB informed the applicant that his DOD SDRP was
not affirmed.

13.  Army Regulation 635-5 (Separation Documents) establishes the
standardized policy for preparing and distributing the DD Form 214.  In
pertinent part, it directs that the dates of time lost during the current
enlistment will be entered on the DD Form 214.  Lost time under Title 10
U.S.C., section 972 is not creditable service for pay, retirement, or
veteran’s benefits; however, the Army preserves a record of time lost to
explain which service between date of entry on active duty and separation
date is creditable service for benefits.

14.  Title 10, U.S. Code, section 972(a)(2) and section 972(a)(3) states
that an enlisted member of an armed force who; (1) is absent from his
organization, station, or duty for more than one day without proper
authority, as determined by competent authority; or (2) is confined by
military or civilian authorities for more than one day in connection with a
trial, whether before, during, or after the trial is liable, after his
return to full duty, to serve for a period that, when added to the period
that he served before his absence from duty, amounts to the term for which
he was enlisted or inducted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was AWOL from 3 July 1970 to
7 July 1970 and was punished under Article 15 for this period of AWOL.

2.  His DA Form 20 shows he was AWOL from 4 August 1970 to 5 August 1970
and did not receive nonjudicial punishment for this period of AWOL.  In
addition, his DA Form 20 shows he was AWOL from 23 August 1970 to 18
September 1970 and from 25 October 1970 to 4 February 1971.  As a result,
he was convicted by a special court-martial and was sentenced to 4 months
of confinement.

3.  In accordance with applicable statute, AWOL and confinement is lost
time.

4.  Based on the governing regulation, the Army preserves a record of time
lost to explain which service between date of entry on active duty and
separation date is creditable service for benefits.  The applicant's
inclusive dates of lost time due to AWOL and confinement are properly
reflected on his DD Form 214.  Therefore, there is no basis for changing
his periods of lost time.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 May 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 May 1974.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

TP______  EA______  JS______  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  Thomas Pagan__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004803                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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