IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20080016509 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the correct dates of active duty.  

2.  The applicant states, in effect, that he was not credited with the proper period of active duty. 

3.  The applicant provides a copy of his reissued DD Form 214, with period ending 18 June 1962; a copy of a memorandum, issued by the Office of the Adjutant General and the Adjutant General Center, Washington, DC, dated
6 January 1981; and a copy of a letter from the U.S. Army Finance and Accounting Center, Indianapolis, IN, dated 21 July 1981 in support of his request. 

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 applicant’s 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 applicant’s 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 a period of 3 years on 18 July 1961.  He completed basic combat training at Fort Knox, KY, on 22 September 1961 and proceeded to Fort Monmouth, NJ, on 5 October 1961 to attend advanced individual training (AIT).  He was assigned to Headquarters and Headquarters Company, U.S. Army Signal School Regiment.

3.  On 1 January 1962, the applicant departed his AIT unit in an absent without leave (AWOL) status.  He returned to military control on 14 January 1962 and was immediately confined at the Post Stockade, Fort Monmouth, until 25 January 1962.

4.  The applicant’s records also show he was released from military confinement on 26 January 1962 to the control of civil authorities and was subsequently confined at the Monmouth County Jail, Freehold, NJ, for civilian charges of larceny and/or burglary.  He was convicted on 16 February 1962 and sentenced to a monetary fine and one year of probation and released from civil confinement to military control on 21 February 1962.  Upon his release from civil confinement, he was again confined at the Fort Monmouth Post Stockade pending trial by court-martial.

5.  On 26 February 1962, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 1 January 1962 through on or about 14 January 1962.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $50.00 pay per month for 6 months. The sentence was adjudged on 26 February 1962.

6.  On 28 February 1962, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 6 months and a forfeiture of $50.00 pay per month for 3 months, but the execution of the confinement at hard labor for 6 months was suspended for 6 months, effective 2 March 1962.

7.  On 5 March 1962, the applicant’s immediate commander recommended the applicant be administratively separated from military service under the provisions of paragraph 20a of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) for misconduct.  He cited the applicant’s misconduct (AWOL), civil conviction (larceny), and unsatisfactory conduct/efficiency.  The immediate commander further recommended an Undesirable Discharge Certificate.

8.  On 8 March 1962, the applicant was counseled and advised of the basis for the contemplated elimination action and told that he could be separated from the Army by a discharge under conditions other than honorable.  He acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He declined further consultation with counsel, waived a hearing by a Board of Officers, and declined to make a statement on his own behalf.  

9.  On 12 and 23 March 1962, the applicant’s intermediate and senior commander recommended approval of the applicant’s discharge, respectively.

10.  On 13 April 1962, the Commanding General, U.S. Army Signal Training Command and Fort Monmouth recommended the applicant’s discharge with an Undesirable Discharge Certificate.  He further remarked that the applicant’s retention was neither practicable nor feasible due to his poor military record and his civil conviction.

11.  On 25 April 1962, the Commanding General, Headquarters, First U.S. Army, New York, NY, recommended the applicant’s discharge under the provisions of paragraph 22 of Army Regulation 635-206 and that the applicant be furnished an Undesirable Discharge Certificate.

12.  On 5 June 1962, the Adjutant General, Headquarters, Department of the Army, disapproved the recommendation for the applicant’s discharge under the provisions of paragraph 22b of Army Regulation 635-206 since the applicant was adjudged as a juvenile offender for an offense not involving moral turpitude.  However, he approved his discharge under the provisions of paragraph 24 of Army Regulation 635-206 and directed his discharge for the "convenience of the Government" under the provisions of paragraph 2 of Army Regulation 635-205 with an Undesirable Discharge Certificate.

13.  The applicant was discharged on 18 June 1962.  The DD Form 214 he was issued shows he was discharged in accordance with paragraph 2 of Army Regulation 635-205 with an undesirable discharge, with service characterized as under other than honorable conditions.  This form further confirms he completed 9 months of creditable active military service and had 60 days of lost time.


14.  On 6 January 1981, the Army Discharge Review Board approved the applicant’s petition in the form of an upgrade of his discharge to an under honorable conditions (general) character of service.

15.  Army Regulation 635-205 (Discharge and Release for Convenience of the Government of Enlisted Personnel), in effect at the time, set forth the conditions under which enlisted personnel could be discharged or released for the convenience of the Government.  Paragraph 2 states, in pertinent part, that separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Section III of the version in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 24(1) (Statement of Service – Net Service this Period) shows the total service completed between the dates shown in item 19c (Date of Entry) and 11d ([Discharge] Effective Date) of the DD Form 214, less time lost under Title 10, U.S. Code, section 972, and time lost subsequent to normal expiration of term of service.  Item 24b shows the total active service the individual has completed beginning with the earliest period of active service up to and including current period of active duty, less time lost under Title 10, U.S. Code, section 972.  Item 32 (Remarks) shows time lost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the correct period of active service. 

2.  The evidence of record shows that the applicant enlisted in the Regular Army and entered active service on 18 July 1961 and was discharged on 18 June 1962.  He completed 336 days or 11 months of active military service.  However, he had 60 days of lost time during this period.  Therefore, his total active service was adjusted by 60 days to show completion of 9 months of active service.  This entry is correctly shown on his DD Form 214.  Therefore, there is no basis for granting the applicant's requested relief.
3.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, the applicant is not entitled to relief.

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)                                         AR20080016509



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ABCMR Record of Proceedings (cont)                                         AR20080016509



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