RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070013994 


	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

Mr.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas 

Member

Ms. Jeanette R. McCants

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 removal of the lost time entry from his DD Form 214 (Report of Separation from the Armed Forces of the United States).

2.  The applicant states, in effect, that a Department of Veterans Affairs representative advised him that this information would be removed from his
DD Form 214 upon request. The applicant further states that he does not desire to have this information on his permanent record.

3.  The applicant provides a copy of his DD Form 214 and DD Form 256A (Honorable Discharge Certificate) in support of this application.

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 record shows that he was inducted into the California Army National Guard on 21 May 1952 at the age of 18.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 1676 (Escort and Security Guard).  On 11 May 1953, he was discharged from the California Army National Guard and inducted into the Army of the United States.  The highest permanent rank the applicant attained while serving on active duty was private second class (PV2)/pay grade E-2.  The highest temporary rank the applicant attained while serving on active duty was private first class (PFC)/pay grade E-3.  On 27 May 1955, he was released from active military service and transferred to the United States Army Reserve.  


3.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal, United Nations Service Medal, and the Korean Service Medal.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  Headquarters, 402nd Quartermaster Battalion Special Court-Martial Order 31, dated 5 April 1954, shows the applicant appeared before a Special Court-Martial for violation of Article 113 [Misbehavior of Sentinel or Lookout] of the Uniform Code of Military Justice (UCMJ).  The order further shows that he was found guilty of the specified charge and sentenced to be confined at hard labor for three months and to forfeit fifty dollars per month for three months.  The sentence was adjudged on 2 April 1954.

5.  Section 12 (Time Lost Under Section 6(a), appendix 2b (The Act of May 1950) of the Manual of Court-Martial (MCM) 1951, and Subsequent to Normal Date of Expiration of Term of Service) of the applicant's DD Form 230 (Service Record) shows he was credited with lost time from 2 April 1954 to 25 May 1954 for a total of 54 days.  The reason shown for the lost time is confinement.

6.  Item 38 (Remarks) of the DD Form 214 issued to the applicant upon release from active duty indicates 54 days of time lost under Section 6(a), appendix 2b of the MCM 1951.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-1 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and it provides a brief, clear-cut record of active duty service at the time of retirement, discharge, release from active duty service, or control of the Active Army.

8.  Paragraph 2-4h(29)(a) (Dates of time lost during this period) of Army Regulation 635-5 prescribes that the DD Form 214 must show inclusive periods of time lost.  The regulation also states that time lost due to confinement is not creditable service for pay, retirement, or veterans benefits.  The regulation further states that the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty and separation date is creditable service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the entry regarding lost time should be removed from item 38 of his DD Form 214 was carefully considered and found to be without merit.

2.  Evidence of record shows the applicant was found guilty of violating Article 113 of the UCMJ and sentenced to confinement.  Evidence further shows that he was confined from 2 April 1954 to 25 May 1954 for a total of 54 days of lost time which is correctly annotated on his DD Form 214.

3.  Army Regulation 635-5, in pertinent part, prescribes that the DD Form 
214 must show inclusive periods of time lost so the Army may preserve a record to explain which service between date of entry on active duty and separation date is creditable service.

4.  Given the above, the applicant’s DD Form 214 was properly prepared in accordance with the regulations in effect at the time.
 
5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD___  _JRM____  _JTM_ __  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.




__John T. Meixell___
          CHAIRPERSON




INDEX

CASE ID
AR
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.