RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070002065 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey C. Redmann

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, 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.  

2.  The applicant states, in effect, that the 1 day of lost time for being absent without leave (AWOL) is unjust because he reported back to his unit the same day he was suppose to be there.  The applicant also states that money was taken away from him as well as his rank.  The applicant adds that it has taken him along time to try and have his records corrected while dealing with his disability.  

3.  The applicant provided a copy of his DD Form 214, dated 1 November 1979, and Department of Veterans Affairs Rating Decision, dated 26 December 2006 in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, as counsel for the applicant states, in effect, that the applicant was medically retired under honorable conditions on 21 January 1979 as a result of being diagnosed with acute schizophrenia.  

2.  Counsel states that the applicant is petitioning the Board to give him clemency or remove the Non-Judicial Punishment finding of 9 March, which cost him one lost day of service for being AWOL from 0730-2030 hours, on 23 February 1978. 

3.  Counsel further states that the applicant urges the Board to grant the relief requested, given his Enlisted Evaluation Reports, overall ratings covering the period, and serving honorably until the alleged AWOL.  Counsel continues that in November 1978, the applicant was diagnosed with the onset of his illness resulting in retirement two months later.  Counsel continues that his case is re-submitted to the Board for deliberation and disposition.

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's military records show prior to the period of service under review, he was inducted and entered active duty on 15 May 1970 and was awarded the military occupational specialty (MOS) 95B (Military Police).  His record shows he was promoted to specialist four/pay grade E-4 on 13 August 1971, which he served in until he was honorably discharged on 3 January 1972.  

3.  On 21 January 1976, he reenlisted in the Army for a period of 3 years in pay grade E-2.  He was subsequently promoted to E-3 on 2 April 1976 and to E-4 on 1 July 1976.

4.  On 21 January 1977, the applicant was convicted by a Summary Court-Martial of on or about 0600 hours on 22 December 1976, for failure to go at the time prescribed to his appointed place of duty.  The resultant punishment included a forfeiture of $50.00 pay per month for a period of one month.  

5.  Department of the Army U.S. Army Military Personnel Center, Alexandria, Virginia Orders Number D3-15, dated 4 January 1979 shows the applicant's retirement effect on 11 January 1979.  The order also shows that the applicant's placement on the Temporary Disability Retired List (TDRL) as of 12 January 1979 with a 30 percent disability rating.

6.  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.  This form also shows that the applicant was separated in the rank of specialist four/pay grade E-4.  Item 21 (Time Lost (Proceeding Two Years) on his DD Form 214 shows the entry 1 day lost (See Item 27).  Item 27 (Remarks) of the applicant's DD Form 214 shows a continuation of item 21 with the entry Time Lost under section 972, Title 10, United States Code -1 days: "from 28 November 1977 to 28 November 1977." 

7.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) on his DD Form 214 shows his rank and pay grade as “SP4”, “E-4.”  The effective date of his pay grade is shown as 1 July 1976.




8.  The applicant's record contains the findings of a TDRL periodic physical examination and a medical board (MEB) assessment convened on 27 December 1980.  The MEB assessment shows that the applicant's schizoaffective disorder indicates he remains unfit with definite impairment and the Physical Evaluation Board recommended permanent retirement.

9.  U.S. Army Personnel Center Orders Number D11-3, dated 16 January 1981, released the applicant from the TDRL due to a permanent physical disability on 31 January 1981.  The applicant was placed on the Permanent Disability Retired List (PDRL) in the rank of specialist four/pay grade of E-4.

10.  The applicant's record contains an administrative letter close, dated 18 March 1985, in response to the applicant's application AC8401133, dated 10 January 1984.  The letter shows that the applicant contends that he was court-martialed for missing a promotion board.  The letter shows that his records indicated that he received a summary court-martial on 21 January 1977 and that no records of the court-martial are available.  The letter continues that the available records show that he was convicted of failure to go to physical training on 22 December 1976 and that he was found not guilty of a second offense of failure to go to a classroom for military occupational specialty testing, on the same day.  The letter continues that there was no offense indicated which involved a promotion board. 

11.  The letter concludes that without a transcript of the court-martial, or at least more details about it, it is not possible for the Board to properly consider his application.  Accordingly, his application was filled without action having been taken by the Board.

12.  Paragraph 1-10(3)u of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), which was in effect at the time of the applicant's discharge states that Soldiers in the ranks of private (PV1)/E-1 to master sergeant (MSG)/E-8 are non-promotable to a higher grade when a PEB determines that a Soldier is no longer qualified for continued service.

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.  The Department of Defense Financial Management Regulation (DoDFMR), Volume 7A states that when a member is in an unauthorized absence status, an administrative determination must be made as to whether the absence was unavoidable.  If it is not excused as unavoidable, the member forfeits pay and allowances for the period of absence.  

15.  Table 1-12 of DoDFMR, Volume 7A lists the Rules for Unauthorized Absence and Other Lost Time - Effect on Pay and Allowances.  If the absence is not excused as unavoidable, then the member is not entitled to pay and allowances, except for that part of the period that is covered by authorized leave, liberty, or pass.

16.  Table 1-13 of DoDFMR, Volume 7A lists the Rules for Determining Whether Absence is Unavoidable.  This table states, in part, that when a member is released without trial upon agreement to make restitution or reparation for the alleged offense and the commander determines that absence was not due to the member’s misconduct then the absence may be excused as unavoidable.  When a member is tried and convicted then the absence may not be excused as unavoidable.

17.  Title 10, section 1372 states that any member of an armed force who is retired for physical disability or whose name is placed on the TDRL is entitled to the grade equivalent to the highest of the following:

	(1) the grade of rank in which he is serving on the date when his name is placed on the TDRL or the date he is retired;

	(2) the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired;

	(3) the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or 

	(4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends in effect that the non-judicial punishment finding of 
9 March 1978, should be removed from his records.

2.  The applicant argues that he returned to his unit and signed in on the required day and is not guilty of any duty time lost.  However, the evidence of record shows he was charged 1 day lost time under Title 10 U.S.C., section 972 for the period 28 November 1977 to 28 November 1977.  The applicant has not provided any documentary evidence to show that the day of AWOL was unjust or in error. 

3.  In accordance with The Department of Defense Financial Management 
Regulation (DoDFMR), Volume 7A states that when a member is in an unauthorized absence status, an administrative determination must be made as to whether the absence was unavoidable.  If it is not excused as unavoidable, the member forfeits pay and allowances for the period of absence.  

4.  In the absence of evidence to determine whether his absence was excused as unavoidable or whether his absence was not excused as unavoidable, the applicant’s period of 1 day of AWOL is presumed to be lost time.  

5.  Further, the applicant's record shows he was promoted to SPC, E-4 on 1 July 1976.  

6.  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 the rank of specialist/pay grade E-4.  Therefore, the applicant was separated from active duty by reason of physical disability in the grade equivalent to the highest grade or rank in which he served satisfactorily in accordance with the regulation in effect at the time.  

7.  Evidence of record also shows he was released from the TDRL due to a permanent physical disability on 31 January 1981 in the rank of specialist four/pay grade E-4.  

8.  Contrary to the applicant's contention, there is no evidence and the applicant did not submit evidence which shows he is entitled to have his rank corrected prior to being retired from active duty.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEA__  __LE  ___  __JCR __  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.




_____James E. Anderholm___
          CHAIRPERSON



INDEX

CASE ID
AR20070002065
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.