RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080000673 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Chester A. Damian

Member

Mr. Qawiy A. Sabree

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 correction of Item 21 (Time Lost) of his DD Form 214 (Report of Separation from Active Duty) from 188 days to the correct number of days.

2.  The applicant states that he was convicted by a Court-Martial for being absent without leave (AWOL) and was sentenced to confinement and that his lost time was miscalculated.

3.  The applicant provides a copy of his DD Form 214, dated 10 April 1974, in support of his 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 records show he enlisted in the Regular Army for a period of 3 years on 24 November 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant's records show that he was awarded the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 January 1973, for being AWOL during the period on or about 7 January 1973 through on or about 9 January 1973.  His punishment consisted of forfeiture of $40.00 pay for one month.

5.  On 30 March 1973, the applicant departed Fort Leonard Wood, Missouri, on permanent change of station (PCS) leave enroute to Eighth United States Army (EUSA), Korea.  However, due to his spouse's pregnancy, he was detached from the U.S. Army Overseas Replacement Station (USAOSREPLSTA), Oakland, California, and attached to Headquarters and Headquarters Company, 39th Engineer Battalion, Fort Devens, Massachusetts, pending a 30-day deferment of his overseas assignment, effective 17 April 1973.  He was subsequently authorized 11 days leave effective 19 April 1973.

6.  On 1 May 1973, the applicant failed to report to Headquarters and Headquarters Company, 39th Engineer Battalion, Fort Devens, Massachusetts, and was reported AWOL.  He was subsequently dropped from the Army rolls (DFR) on 31 May 1973.  

7. On 20 June 1973, Headquarters, Fort Devens, Massachusetts, published Special Orders Number 124, diverting the applicant's assignment from EUSA, Korea, to Headquarters and Headquarters Company, 39th Engineer Battalion, Fort Devens, Massachusetts, effective 17 April 1973 (the date he was originally attached to that unit).

8.  On 9 July 1973, the applicant was apprehended by civil authorities and returned to military control at Fort Devens, Massachusetts.  

9.  On 2 August 1973, the applicant pled not guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 1 May 1973 through on or about 9 July 1973.  However, the Court found him guilty of being AWOL from 1 May 1973 to 15 May 1973 and sentenced him to confinement at hard labor for 3 months.  The sentence was adjudged on 2 August 1973.  

10.  On 11 September 1973, the convening authority approved the sentence and ordered the execution of the adjudged confinement at hard labor for 3 months be suspended for 3 months and the service of the sentence to confinement be deferred and rescinded effective 2 August 1973.

11.  On 29 October 1973, the applicant departed his unit in AWOL status.  He was subsequently reported DFR on 27 November 1973.  He was apprehended by civil authorities and returned to military control on 21 February 1974.

12.  On 27 February 1974, Court-Martial charges were preferred against the applicant for being AWOL during the period on or about 29 October 1973 through on or about 21 February 1974.  

13.  On 28 February 1974, the convening authority vacated the suspended sentence of confinement at hard labor for 3 months and ordered the unexecuted portion of the sentence to confinement at hard labor for 3 months executed.

14.  On 28 February 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by Court-Martial.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by Court-Martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

15.  On 22 March 1974, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate and be reduced to the grade of private/E-1.  On 10 April 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for the good of the service in accordance with chapter 10 of Army Regulation 635-200.  This form further confirms the applicant completed a total of 10 months and 10 days of creditable active military service with 188 days of lost time due to AWOL.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 21 of the version in effect at the time showed time lost.  This information was required by other Federal agencies and included time lost under Title 10, U.S. Code, section 972 (paragraph 2-3 of Army Regulation 635-200), and time in an excess leave status for the preceding 2 years only.

17.  Army Regulation 635-200 (Personnel Separations) set forth the basic authority for the separation of enlisted personnel.  Paragraph 2-3 of the regulation in effect at the time provided for time lost to be made good. It stated, in pertinent part, that every individual in active Federal service who renders himself 
unable for more than 1 day to perform duty will be liable, after a return to full duty status, to serve for such period as is necessary to complete his full term of service or obligation, exclusive of such time lost.  Lost time in this regulation
referred to periods of more than 1 day during which an individual on active duty was liable to perform duty because of desertion, absence without proper authority, confinement under sentence, confinement while awaiting trial or disposition of individual's case, if trial results in conviction, intemperate use of drugs or alcoholic liquor, and/or disease or injury, the result of individual's own misconduct.  Time lost, during an enlistment or induction period will be made good at the end of the enlistment or induction period, except that when an enlistment or period of induction is extended by law, time lost will be made good at the end of the extension.  This requirement may be waived by Headquarters, Department of the Army. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant had 188 days of lost time as follows: 2 days of AWOL, from 7 January 1973 to 8 January 1973; 70 days of AWOL, from 1 May 1973 to 9 July 1973 (regardless of the number of days convicted by the Special Court-Martial); and 116 days of AWOL, from
29 October 1973 to 21 February 1974.  The total number of lost days due to AWOL is 188 days, which is correctly shown in Item 21 of the applicant’s DD Form 214. 

2.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cad___  __qas___  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.