IN THE CASE OF:	  

		BOARD DATE:	        25 June 2009

		DOCKET NUMBER:  AR20080019086 


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, correction of his records to show he was not in an absent without leave (AWOL) status for 210 days.  He also requests award of the Good Conduct Medal.

2.  The applicant states, in effect, that his commander at the time knew where he was and that he had his Army check brought to him every month from July 1976 to February 1977.  He also adds that he did not receive the Good Conduct Medal.

3.  The applicant did not provide any additional documentary evidence 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 4 years on 22 May 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 30 October 1973 to 4 August 1975.

4.  The applicant's record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

   a.  on 3 January 1975, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of 14 days of restriction and 14 days of extra duty;

	b.  on 17 June 1975, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $25.00 pay, 7 days of restriction, and 7 days of extra duty;

	c.  on 11 July 1975, for being incapacitated for the performance of his duty, due to indulgence of intoxicating liquor.  His punishment consisted of a reduction in rank to private (PV2)/E-2, a forfeiture of $50.00 pay, 14 days of restriction, and 14 days of extra duty; and

	d.  on 24 October 1975, for altering, with intent to deceive, an official document (Air Force Form 569), behaving with disrespect towards a superior commissioned officer and offering violence against a superior commissioned officer.  His punishment consisted of a reduction to the rank of PV2/E-2, 14 days of detention, and 1 months pay.

5.  On 21 July 1976, the applicant was arrested by civil authorities for the civilian charge of burglary.  He remained imprisoned until 31 August 1976, when he pled guilty at the Circuit Court of Dale County, Ozark, AL, to the charge and was sentenced to 10 years in the state penitentiary.  

6.  On 8 November 1976, the applicant was notified of a pending separation action under the provisions of Army Regulation 635-206 (Personnel Separation) for misconduct due to civil conviction for first degree burglary.  


7.  On 8 November 1976, the applicant requested consideration of his case by a board of officers and on 13 December 1976 the applicant appeared with counsel before a board of officers convened to consider his retention in the service.  The board recommended that the applicant not be retained and that an under other than honorable conditions discharge was warranted.  The approval authority approved the board’s recommendation.

8.  On 8 March 1977, the applicant was accordingly discharged under the provisions of Army Regulation 635-206 for misconduct due to being convicted by a civil court with a character of service of under other than honorable conditions.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 years, 1 month, and 26 days of total active service.  

9.  Item 21 (Time Lost) of his DD Form 214 shows he has 231 days of lost time.

10.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court.  An undesirable discharge was normally considered appropriate, however, at the time the applicant was separated an under other than honorable conditions discharge was considered appropriate.

12.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was not in an AWOL status for 210 days and that he be awarded the Good Conduct Medal.

2.  With respect to the applicant's lost time, there is no evidence in the applicant's records that show he was AWOL for a period of 210 days.  However, the evidence of record does show that he was imprisoned by civil authorities on 
21 July 1976 and he remained imprisoned until he was discharged from the Army on 8 March 1977.  This period equals 231 days, it is considered lost time, and it is correctly recorded on the applicant’s DD Form 214.

3.  The applicant's record shows he entered active service on 22 May 1973 and he would have been eligible for award of the Good Conduct Medal on 21 May 1976.  However, his record shows he accepted nonjudicial punishments on four different occasions in 1975.  This derogatory information disqualifies him from being awarded the Good Conduct Medal.  Therefore, he is not entitled to this award.

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)                                         AR20080019086



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ABCMR Record of Proceedings (cont)                                         AR20080019086



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