IN THE CASE OF:	  

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080018382 


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, in effect, deletion of the dates of lost time from Item 29 (Dates Of Time Lost During This Period) of his DD Form 214 (Certificate of Release for Discharge from Active Duty).

2.  The applicant states, in effect, that he did not incur any lost time under his second term that started on 21 February 1994; however, he was separated from the Army early under the provisions of Chapter 4, Army Regulation 635-200 (Enlisted Separations).   

3.  The applicant provides no additional documentation in support of his application.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 28 August 1989.  He completed basic and advanced individual training and was assigned military occupational specialty 31V, Radio Repairer. He was promoted to pay grade E-4 on 1 December 1991.

3.  The applicant reenlisted in the Regular Army on 22 February 1994 for 3 years.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record), Item 18 (Appointments and Reductions) shows he was reduced from pay grade E-4 to pay grade E-1 on 6 June 1994.  He was then promoted again to pay grade E-2 on 1 January 1995 and to pay grade E-3 on 1 April 1995.  Item 21 (Time Lost) of his DA Form 2-1 shows he had lost time from 6 June 1994 to 15 June 1994 due to confinement.  

5.  All the documents containing the facts and circumstances surrounding the applicant's grade reduction and confinement are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows in Item 29, "Under 10 USC 972 (Title 10, United States Code, section 972):  19940606-19940615."  Item 12c (Net Active Service This Period) shows he was credited with 7 years, 1 month, and 24 days net active service.

6.  The applicant was honorably released from active duty, in pay grade E-3, on 1 November 1996, under the provisions of Chapter 4, Army Regulation 635-200 at the completion of required active service.  He was transferred to the United States Army Reserve Control Group (Reinforcement).  

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  Item 29 verified that time lost as indicated by Defense Finance and Accounting Service agencies was subtracted from Net Active Service This Period (Item 12c) if the lost time was not "made good."  However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (Item 12a) and separation date (Item 12b) was creditable service.  For enlisted Soldiers, Item 29 would show inclusive period of lost time to be made good under Title 10, United States Code, section 972.  

8.  Title 10, U. S. Code, section 972 specifies that all enlisted members of an armed force who are absent from their organization, station, or duty for more than one day without proper authority, as determined by competent authority, are required to make up lost time.  




DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to deletion of the dates of lost time from Item 29 of his DD Form 214.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The applicant's contentions have been noted.  However, the available evidence of record shows that the applicant was reduced from pay grade E-4 to E-1 on 6 June 1994 and confined for 10 days from 6 June 1994 to 15 June 1994. In order for the applicant to be reduced in rank and placed in confinement, it required approval by appropriate authority.  Removal of lost time from a military record will only be accomplished when an error or injustice is found.  Since the lost time shown in the applicant’s military records was a result of confinement, there has been no basis established for a determination that the lost time was entered in error or that an injustice occurred; and therefore the entry should not be removed from his military records.  

3.  The applicable regulation shows that lost time not made good would be subtracted for the net active service and shown in Item 29 of the Soldier's DD Form 214.  The applicant served on active duty from 28 August 1989 to 1 November 1996, a period of 7 years, 2 months, and 4 days.  His 10 days of lost time were subtracted from his net active service for a total of 7 years, 1 month, and 24 days of creditable service.  There is no indication that the applicant’s reduction and confinement resulting in 10 days of  lost time were unjust or inequitable.  Without evidence to show otherwise, administrative regularity must be presumed and it must be concluded that the lost time was properly placed on his DD Form 214.

4.  In the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper and in conformance with applicable regulations.  

5.  In view of the foregoing, there is no basis for granting the applicant's 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.




      _______ _   ___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)                                         AR20080018382



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018382


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1