IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080008001
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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 4 March 1988 be corrected to show he served 3 continuous years of active duty.
2. The applicant states that he applied for a job under the Veterans Employment Opportunities Act (VEOA) and it requires that you serve 3 continuous years of active duty. He states that he entered active duty on 12 February 1985 and was released from active duty on 4 March 1988 which is a total of 3 years and
1 month. However, his net active service on his DD Form 214 shows 2 years,
11 months, and 17 days. The applicant states that he was credited for the overall service time as being served but not given the credit on the net time due to an early out program that was given even though we were told full credit for time served would be credited and we would not be penalized which is what occurred.
3. The applicant provides DD Form 214 and an Honorable Discharge Certificate, dated 19 January 1993.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 12 February 1985 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).
3. On 24 October 1985, the applicant was convicted, pursuant to his pleas, by a summary court-martial, of being absent without leave (AWOL) for the period
2 October 1985 through 10 October 1985. His sentence consisted of a forfeiture of $187.00 per month for one month and 30 days confinement.
4. On 4 March 1988, the applicant was honorably released from active duty under the Fiscal Year 88 Early Transition Program after completing 2 years,
11 months, and 17 days of creditable active service with 35 days of lost time due to AWOL and confinement. His DD Form 214 with the ending period 4 March 1988 shows the entry of "85" year(s), "02" month(s), and "12" day(s) in item 12f (Date Entered AD This Period). Item 12b shows the entry "88" year(s), "03" month(s), and "04" day(s). Item 12c (Net Active Service This Period) shows the entry "02" year(s), "11" month(s), and "17 day(s)." Item 18 (Remarks) of the applicant's DD Form 214 shows 2 October 1985 through 10 October 1985 and
12 October 1985 through 7 November 1985 as lost time under Title 10, U.S. Code, section 972.
5. Title 10, U.S. Code, section 972 (Members: effect of time lost), subsection (a) states that an enlisted member who (1) deserts; (2) is absent for more than 1 day without proper authority; (3) is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or (4) is incapacitated for duty due to intemperate use of drugs or alcohol or because of disease or injury resulting from his misconduct; is liable to make up that lost time.
DISCUSSION AND CONCLUSIONS:
The applicant contends that his DD Form 214 should be changed to show that he served on active duty for a period of 3 years and 1 month. Evidence of record shows he entered active duty on 12 February 1985 and was released from active duty on 4 March 1988. This totals 3 years and 22 days. However, the applicant had 35 days of lost time due to AWOL and confinement. This meant he was liable to make up that lost time. Therefore, 35 days of lost time was subtracted from his total service of 3 years and 22 days, which left the applicant with a net active service of 2 years, 11 months, and 17 days. The applicant's DD Form
214 is correct as currently constituted and there is an insufficient basis for changing it.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ ____xx__ ___xx___ 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.
______xxxx____________
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) AR20080008001
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