IN THE CASE OF:
BOARD DATE: 11 December 2008
DOCKET NUMBER: AR20080016396
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 item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show 4 April 1998 instead of 24 March 2000.
2. The applicant states, in effect, that the date shown on his DD Form 214 is his original expiration term of service (ETS) for his last enlistment. He contends that he was separated early after serving six months of confinement as the result of a 1997 general court-martial.
3. The applicant provides a copy of his DD Form 214.
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 27 January 1982 and trained as a personnel specialist. During his service he was awarded an additional military occupational specialty of and an indirect fire infantryman. He remained on active duty through continuous reenlistments and attained the rank of staff sergeant. On 22 June 1994, he reenlisted for a period of 6 years.
3. On 4 November 1997, in accordance with his pleas, the applicant was convicted by a general court-martial of four specifications of wrongful appropriation. He was sentenced to forfeit $600.00 pay per month for 12 months, to be reduced to E-1, to be confined for 12 months, and to be discharged with a bad conduct discharge. On 28 April 1998, the convening authority approved only so much of the sentence as provided for a reduction to E-1, forfeiture of $600.00 pay per month for 12 months, confinement for 6 months, and a bad conduct discharge. He was on placed on excess leave status from 28 May 1998 to 24 March 2000.
4. The U.S. Army Court of Military Review decision is not available. However, on 25 February 2000, the convening authority ordered the bad conduct discharge to be executed.
5. Accordingly, the applicant was discharged with a bad conduct discharge on 24 March 2000 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 17 years, 8 month, and 28 days of creditable active service with 150 days of lost time due to confinement.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicants contention that the separation date shown on his DD Form 214 is his original ETS for his last enlistment. He reenlisted on 22 June 1994 for a period of 6 years; therefore, his ETS would have been 21 June 2000.
2. Although the applicant contends that his separation date was 4 April 1998, evidence of record shows he was placed on excess leave status awaiting discharge on 28 May 1998 but his appellate review was not completed until
25 February 2000. Once his appellate review was completed, his bad conduct discharge was ordered to be executed. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ____X____ 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.
ABCMR Record of Proceedings (cont) AR20080016396
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ABCMR Record of Proceedings (cont) AR20080016396
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