IN THE CASE OF:	 

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080014867 


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 reconsideration of his request for removal of the absent without leave (AWOL) entry for 11 May 1959 from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant broadens his request from his original application by also requesting:

	a.  His DD Form 214 be corrected to show his temporary duty (TDY) in Laos for 2 months during 1960; 

	b.  His DD Form 214 be corrected to show he attended the Noncommissioned Officer (NCO) School (sic);

	c.  His DD Form 214 be corrected to show his military occupational specialty (MOS) was 133.00 (Reconnaissance Scout); and

	d.  His courts-martial be expunged from his record.

3.  The applicant contends that that he was a minor, that he repaid all his lost time, and put his life in a dangerous volunteer position to make amends.  It is unjust that his record not be cleared as it was promised.  His life should not be effected because some clerk did not do their job.  He contends that he was in the 3rd Reconnaissance Squadron, 7th Cavalry at Fort Benning, Georgia, and 
A Troop, 2nd Reconnaissance Squadron, 7th Cavalry, 3rd Infantry Division in Bamberg, Germany.  After he completed the NCO School, he volunteered for duty in Laos.  He was told it would be very important, and that he would be performing guard duty.  He was asked to volunteer by the 10th Special Forces at the NCO School.  He contends that he volunteered for the TDY in Laos, and was in Laos from September – November 1960.  He was under fire daily and he was told by his captain that his record would be cleared as long as he served out the rest of his enlistment without any further problems because of his volunteer service.  The unit commander said that the squadron commander told him to tell the applicant this when he returned to his unit in Bamberg.  He returned to the U.S. in December 1960 and was assigned as a reconnaissance scout to the 6th Armored Cavalry Squadron, 3rd Reconnaissance Squadron.  He later became the driver for the squadron commander, who told him he should go to Officer Candidate School (OCS).  His MOS changed because the 6th Cavalry was mothballed.  The squadron commander told him his AWOLs would be taken care of because of what he did in Laos.

4.  The applicant also contends that his active duty was extended because of the Berlin Crisis, which is why he repaid the 44 days of lost time.  He also states that he believed one of his courts-martial was a summary.  However, he wants both courts-martial expunged or forgiven also.  He was a "dumb 17 year old kid."  

5.  The applicant provides a copy from the Florida Department of Financial Services; a copy of a Personnel Action Form; and a copy of a DA Form 1315 (Reenlistment Data Card).

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004088, on 5 June 2008.

2.  The applicant enlisted in the Regular Army on 20 January 1959 and was  trained in, awarded, and served in MOS 642.10 (Heavy Vehicle Driver).  His DA Form 20 (Enlisted Qualification Record) shows his primary MOS as 642.10 and his secondary MOS as 133.10 (Armor Intelligence Specialist).  This form also shows that he held duty positions in his secondary MOS (133.10) at Fort Benning, Georgia, Fort Knox, Kentucky, and in Germany.

3.  The evidence of record shows the applicant was convicted by 2 special courts-martial as covered in the previous decision.


4.  The applicant was honorably discharged on 18 April 1962.  He was credited with 3 years, 1 month, and 15 days of total active service.  Item 32 (Remarks) of his DD Form 214 shows he had 44 days of lost time due to AWOL and confinement.

5.  Special Orders Number 26, Headquarters, 6th Armored Cavalry, Fort Knox, dated 5 February 1962, promoted the applicant to specialist five/E-5 in MOS 642.10.  His orders separating him from the Army show his MOS as 642.10.

6.  There is no evidence that the applicant went TDY to Laos in September – November 1960.  His service record shows he was assigned to Troop A, 2nd Reconnaissance Squadron, 7th Cavalry during that period of time, and on
12 December 1960, he departed Germany in casual status en route to his new assignment at Fort Knox.

7.  The applicant completed the 3rd Infantry Division NCO Academy on
3 September 1960.

8.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed policies and procedures regarding separation documents (DD Form 214/5).  Item 24 (Statement of Service) would list total service completed between the dates of entry and separation, less time lost subsequent to normal expiration of term of service.  Lost time under 10 U.S. Code 972 and non-creditable time after expiration term of service, if any, was deducted from net active service for the period covered in the DD Form 214.  Lost time is listed in Item 32 (Remarks) of the DD Form 214.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no new evidence in support of his request for reconsideration to expunge his AWOL on 11 May 1959.  As previously noted, he was placed in military confinement from 11 May – 10 June 1959.   Although in military confinement, the day is still a day of lost time because military confinement is non-creditable for pay and all other purposes.
2.  There is no evidence the applicant volunteered for or performed TDY in Laos from September – November 1960.  There is no evidence that he was promised that the AWOL time in his record would be expunged.

3.  There is no evidence that the applicant was extended in the service due to the Berlin Crisis.  The record shows he had 44 days of lost time due to AWOL and military confinement and that his period of enlistment was extended for 45 days in order to make his lost time "good."  Although his lost time was made "good," it is not expunged from the record and is recorded in Item 32 of the DD Form 214 as required by Army regulations.

4.  The evidence of record shows that the applicant performed duties in his secondary MOS of 133.10 at various assignments.  However, there is no evidence that he was awarded 133.10 as a primary MOS.  He was promoted to specialist five/E-5 in his primary MOS (642.10) and at the time of his discharge it was still his primary MOS.  As such, it is properly recorded on his DD Form 214.

5.  The applicant completed the NCO Academy; however, in order for it to be listed on his DD Form 214, both the start and ending dates must be shown.  The applicant's official record does not show the date he started the NCO Academy.  Regrettably, there is insufficient evidence to list this training on his DD Form 214.

6.  The Board is not empowered to expunge a court-martial from the official record.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20080004088, dated 5 June 2008.

2.  The evidence presented pertaining to the new issues does not demonstrate the existence of a probable error or injustice.  Therefore, the Board has further determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ 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)                                         AR20080014867





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ABCMR Record of Proceedings (cont)                                         AR20080014867



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