IN THE CASE OF:	

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080003358 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Certificate of Release Or Discharge From Active Duty (DD Form 214) entry in Item 12C (Net Active Service This Period) be deleted (001-11-17) and add (02-09-09) and Item 29 (Dates of Time Lost During This Period) be deleted (20060724-20070408 and 20070412-20070522 be corrected to show lost time (20070510-20070513).   

2.  The applicant states, in effect, that the periods of time lost currently reflected on his DD Form 214 are incorrect because he was present for duty as documented by the enclosed forms.  During those periods, he was deployed to Iraq and even reenlisted on one of the dates in question.  After his reenlistment on 4 October, he did accrue and was charged 4 days of lost time from 10 to13 May 2007 due to an unauthorized absence.  This period of lost time is reflected on his Leave and Earning Statement.  Several times during the length of his enlistment there were instances in which he failed to show up for his appointed place of duty on time.  As a result, he was counseled and received Article 15’s as documented in the enclosed forms.  On each of these occasions, lateness/ absence never exceeded 24 hours and therefore is not considered time lost as specified by 10 USC 972.  It appears that he has been falsely charged with 
9 months and 26 days of time lost.  He adds that he needs immediate medical benefits.  He currently has no health care coverage and the mistakes on his 
DD Form 214, prevents him from being eligible.  He is currently suffering with mental health issues.



3.  The applicant provides a copy of his military record in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 17 September 2004.  He was trained in and awarded military occupational specialty (MOS) 25C (Radio Operator Maintenance).  

2.  In April 2005, while assigned to a unit at Fort Hood, Texas.  The applicant was counseled on two different occasions for three incidents of failure to report to his appointed place of duty at the prescribed time and for failing to follow instruction.

3.  On 2 May 2005, while assigned to a unit at Fort Hood, Texas the applicant accepted nonjudicial punishment (NJP) for two incidents of failure to go at the prescribed time to his appointed place of duty and for making a false official statement.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $288.00 pay, 14 days of restriction and extra duty. 

4.  On 15 March 2006, while assigned to a unit in Iraq, the applicant accepted NJP for willfully disobeying a lawful order from his superior noncommissioned officer, for failure to go at the prescribed time to his appointed place of duty and for orally communicating certain indecent language.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $333.00 pay and 14 days of extra duty. 

5.  Between January and September 2006, while assigned to a unit in Iraq, the applicant was counseled on 14 different occasions for 9 incidents of failure to repair, for three incidents of being disrespectful, for four incidents of disobeying a lawful order, for failing the Army’s Physical Fitness Test and for wearing an improper uniform.  

6.  On 18 April 2007, while assigned to a unit at Fort Hood, Texas, the applicant accepted NJP for five incidents of failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $713.00 pay (suspended until 18 July 2007and 30 days of extra duty. 

7.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he ever accrued any lost time during his active duty tenure.  However, the applicant’s pay record shows that his pay was deducted for being AWOL from 10 to 13 May 2007.  There is no other evidence of the applicant being AWOL.    
8.  On 15 May 2007, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14 -12b, Army Regulation 635-200, by reason of Misconduct - Pattern of Misconduct, with a discharge under honorable conditions (General).  The reason for the recommended action was that the applicant was engaged in a pattern of serious misconduct and his record of disciplinary action which included three field grade Article 15’s.  He was advised of his rights.  

9.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

10.  On 18 May 2007, a Mental Status Evaluation cleared the applicant for separation.   

11.  On 20 June 2007, the appropriate authority approved the recommendation and directed the issuance of a general discharge under honorable conditions.  It was further recommended that the rehabilitative requirements be waived.  

12.  On 29 June 2007, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14-12b by reason of Misconduct-pattern of misconduct, with a discharge under honorable conditions (general).  The DD Form 214, he was issued contains an entry in Item 12c (Net Service This Period) contains the entry "0001  11  17," which indicates he only completed 1 year, 11 months and 17 days of creditable active military service, and Item 29 shows that he accrued time lost between 20060724-20070408: 20070412-20070522.  

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

14.  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.  The instructions for Item 29 state to enter verified periods of time lost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the entry in Item12C and Items 29 of his DD Form 214 is incorrect was carefully considered and found to have merit.  The applicant's OMPF is void of any documents or orders that indicate the applicant was ever in time lost status.  However, his pay does show that his pay was deducted because of being AWOL for 3 days.  No other periods of AWOL was found in his military records.  His record confirms he was serving in Iraq for more than a year of the period identified in Item 29 as time lost.  Further, the applicant’s record of misconduct also proves that he was not AWOL during the periods that are document in item 29 of his DD Form 214.  

2.  The time lost entry in Item 29 and the net active service entry in Item 12c are inconsistent with other record entries and are not supported by documentation in his OMPF.  As a result, it is clear the entries in Item 12c and Item 29 are in error. Therefore, it would be appropriate to amend his DD Form 214 by deleting the current entry in Item 12c and replacing it with the entry "0002  09  09"; and by deleting the current entry in Item 29 and replacing it with the entry "20070510 -20070513."

BOARD VOTE:

____X___  ___X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION









BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 29 June 2007 DD Form 214 by deleting the current entry in Item 12c and replacing it with the entry "0002  09  09"; deleting the current entry in Item 29 and replacing it with the entry "20070510 -20070513"; and providing him a correction to his separation document that includes these changes.




      _______ _   _X___   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003358



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ABCMR Record of Proceedings (cont)                                         AR20080003358



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