RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070017120 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, reconsideration of his earlier request that his discharge be changed to a retirement and that he be awarded retired pay.

2.  The applicant states that he has been retired from the Army but was never awarded retired pay.  He was inducted on 16 February 1941 and was discharged on 6 February 1963.  As such, he is entitled to receipt of retired pay.

3.  The applicant provides a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation); two AGO Forms 01252 (Certificate in Lieu of Lost or Destroyed Discharge); an Order to Report for Induction, dated 11 February 1941; a WD AGO Form 221 (Report of Induction of Selective Service Man), dated       17 February 1941; portions of two prior Army Board for Correction of Military Records (ABCMR) cases; and his DD Form 214 (Certificate of Release or Discharge from Active Duty), as prepared pursuant to his first ABCMR case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC85-03474 on 30 October 1985.

2.  The applicant was inducted into the Army on 17 February 1941.  He was honorably discharged on 4 January 1946 after completing 4 years, 10 months, and 18 days of active service with 21 days of lost time (adjusted to 4 years,         9 months, and 27 days of creditable active service).  

3.  The applicant enlisted in the Regular Army on 17 June 1948.  He was honorably discharged on 30 July 1952 after completing 4 years, 1 month, and    14 days of creditable active service with no lost time and 4 years, 9 months, and 27 days of prior active service.

4.  The applicant reenlisted on 31 July 1952 for 6 years.  He was honorably discharged on 5 May 1958 and reenlisted on 6 May 1958 for 6 years.

5.  On 16 November 1962, the applicant was convicted, in accordance with his plea, by a general court-martial of being absent without leave (AWOL) from on or 

about 17 April 1962 to on or about 12 September 1962.  After considering two previous convictions, he was sentenced to be discharged with a bad conduct discharge.

6.  On 4 January 1963, the Board of Review, United States Army affirmed the findings of guilty and the sentence.

7.  On 6 February 1963, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.  He had completed 4 years and 6 days of creditable active service from the period of his last reenlistment on 6 May 1958 until his discharge on 6 February 1963 with 242 days of lost time (AWOL and confinement).  He had completed a total of 14 years, 8 months, and 26 days of prior creditable active service (for a total of 18 years, 9 months, and   2 days).  His original DD Form 214 for this period is not available.

8.  Around 1984, the applicant applied to the ABCMR to have his bad conduct discharge upgraded to honorable.  In ABCMR Docket Number AC-83-10459, considered on 11 April 1984, the ABCMR found that although his trial by general court-martial and subsequent discharge were free from error and in conformance with law, his bad conduct discharge appeared to be somewhat excessive in view of the length of time he had served, the caliber of his overall service, and his record of good citizenship over the past 20 years.  The ABCMR directed that his bad conduct discharge be upgraded to a general discharge under honorable conditions.

9.  Around 1985, the applicant applied to the ABCMR to have his discharge changed to a retirement and to be awarded retired pay.  ABCMR Docket Number AC85-03474, considered on 30 October 1985, noted that the applicant believed he had 19 years, 6 months, and 22 days of “good service,” rendering him eligible for retirement.  It also noted that the applicant admitted that he had less than the 20 years of qualifying service required to retire for length of service.

10.  When the applicant’s DD Form 214 for the period ending 6 February 1963 had been reissued in accordance with the directive of the ABCMR, his date of separation and his date of entry on active duty that period were inadvertently reversed.  In April 2006, he requested that this DD Form 214 be corrected.  This DD Form 214 was corrected on 24 July 2007 as a result of ABCMR Docket Number AR20060005966 considered on 9 January 2007, to enter his date of separation and is date of entry on active duty that period in the proper sections.


11.  Title 10, U. S. Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service for an active Federal service (AFS) retirement may, upon his request, be retired.

12.  Army Regulation 635-200, chapter 12, establishes policy and prescribes procedures for retiring enlisted Soldiers for length of service.  It states that a Soldier who has completed 20, but less than 30, years of AFS may, at the discretion of the Secretary of the Army, be retired at his or her request.  

DISCUSSION AND CONCLUSIONS:

1.  When the applicant contended, with his application considered in ABCMR Docket Number AC85-03474, that he believed he had 19 years, 6 months, and 22 days of “good service,” it appears he was counting all his service from          17 February 1941 through 6 February 1963 minus his break in service, but failing to also subtract all of his lost time.  His lost time, which accounted for 242 days of his “service,” was not creditable towards retirement.

2.  The applicant appears to believe that he was retired from the Army.  However, although the ABCMR upgraded his bad conduct discharge to a general discharge under honorable conditions, the ABCMR also determined that his trial by general court-martial and subsequent discharge were free from error and in conformance with law.  

3.  Retirement for an enlisted Soldier with less than 30 years of AFS is not a right, but is at the discretion of the Secretary of the Army.  The applicant’s misconduct, when he was an experienced Soldier with many years of service and should have known what the consequences of such misconduct could be, would have been and is still a valid reason not to correct his records to show he earned a retirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__slp___  __pms___  __lcb___  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 to amend the decision of the ABCMR set forth in Docket Number AC85-03474 dated 30 October 1985.




__Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR20070017120
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
136.02
2.

3.

4.

5.

6.