IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080009982
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 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he served 91 days vice 2 months and 23 days.
2. The applicant states, "The records say that I only served two months and twenty three days while all along I had a total of ninety one days of hon. service." He states his service record is in error or unjust because it does not give an accurate account of what happened in his situation. He concludes that everyone wants justice.
3. The applicant provides no additional documentation.
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's records show he enlisted in the Regular Army for 2 years on 28 December 1967. Upon enlistment, he was assigned to Fort Bragg, North Carolina for Basic Combat Training.
3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willful disobedience and striking an acting noncommissioned officer. He also was convicted by a court-martial for disobeying a direct order.
4. The applicant was processed for administrative separation under the provisions of Army Regulation 635-212, presumably for unsuitability. On 27 March 1968, he was separated with a general, under honorable conditions discharge. His DD Form 214 shows that he served 2 months and 23 days of creditable active Federal service. It also shows that he had 7 days of lost time from 18-24 February 1968.
5. Army Regulation (AR) 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would be furnished an undesirable discharge, unless circumstances warranted a general or honorable discharge. Service members discharged for unsuitability would be furnished an honorable or general discharge.
6. AR 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 establishes standardized policy for preparing and distributing the DD Form 214. It provides, in pertinent part, that lost time under 10 USC 972 and non-creditable time after expiration of term of service (ETS), if any, are deducted from Item 22a(1), Net Service This Period.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his DD Form 214 show 91 days in Item 22a(1).
2. The applicant's service from enlistment to discharge 28 December 1967 through 27 March 1968 does equal 91 days. However, the applicant had 7 days of lost time, as shown in Item 26a of his DD Form 214.
3. AR 635-5 states that lost time is non-creditable time; therefore, the preparer of the applicant's DD Form 214 deducted that lost time from the 91 days between enlistment and discharge, and entered 2 months and 23 days in Item 22a(1).
4. Based on the dates of the applicant's active duty service, a deduction of 7 days actually results in a total of 2 months and 22 days. The applicant's DD Form 214 is, therefore, incorrect in Item 22a(1) and he should actually have one less day of creditable active Federal service. However, it is the policy of the Army Board for Correction of Military Records to not make an applicant worse off after a correction is made; thus the sum of 2 months and 23 days will not be altered.
5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
XXX
______________________
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.
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