IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090000239 


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 (Certificate of Release or Discharge from Active Duty) to show he completed 4 years of total active service instead of 2 years, 9 months, and 4 days, as currently shown. 

2.  The applicant states that item 18 (Record of Service) on his DD Form 214 shows an inaccurate total period of service.

3.  The applicant provides a copy of his DD Form 214, dated, 5 January 1965, and copies of his DD Forms 215 (Correction to DD Form 214), dated 8 August 1988, 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 5 January 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76M (Ammunition Records Clerk).  The highest rank he attained during his military service was specialist five (SP5)/E-5.  

3.  The applicant’s records also show he served in the Republic of Vietnam from on or about 15 June 1966 to 11 June 1967.

4.  On 4 December 1967, the applicant accepted nonjudicial punishment for being absent without leave (AWOL) during the period on or about 19 November 1967 through on or about 28 November 1967 (9 days).  His punishment consisted of a reduction to SP4/E-4 and a forfeiture of $35.00 pay for 2 months.

5.  On 21 February 1968, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period 27 December 1967 through 23 January 1968 (27 days).  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $90.00 pay per month for 6 months.  The sentence was adjudged on 21 February 1968.

6.  On 26 February 1968, the convening authority approved the applicant’s sentence but suspended that portion of the punishment adjudging confinement at hard labor for 6 months for a period of 6 months.

7.  On 30 September 1968, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period 10 May 1968 through 
9 August 1968.  The Court sentenced him to confinement at hard labor for 
4 months, a forfeiture of $97.00 pay per month for 4 months, and reduction to private (PV1)/E-1.  The sentence was adjudged on 30 September 1968.  

8.  On 2 October 1968, the convening authority approved the applicant’s sentence but suspended for 4 months that portion of the sentence adjudging confinement at hard labor for 4 months, effective 5 October 1968. 

9.  On 21 January 1969, the convening authority ordered the unexecuted portion of the applicant’s sentence to confinement at hard labor for 4 months executed.  Accordingly, the applicant was confined from 14 January 1969 to 3 March 1969.

10.  On 4 March 1969, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 4 months was ordered suspended until 3 April 1969, at which time, unless sooner vacated, the suspended portion of the sentence was considered remitted without further action.

11.  On 6 May 1969, the applicant departed his unit in an AWOL status.  He returned on 30 June 1969 (55 days).

12.  On 2 July 1969, the applicant was confined in pretrial confinement.  He remained in confinement for 14 days and was released on 15 July 1969. 

13.  On 18 July 1969 (erroneously shown as 18 August 1969), court-martial charges were preferred against the applicant for being AWOL during the period 6 May 1969 through 30 June 1969.

14.  On 28 July 1969, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

15.  On 3 September 1969, the separation authority approved the applicant's request for discharge.  On 10 September 1969, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial and issued an Undesirable Discharge Certificate.  This form further confirms the applicant had completed a total of 2 years, 9 months, and 4 days of creditable active military service and he had 209 days of lost time prior to his expiration of term of service (ETS) date and 127 days of lost time subsequent to his normal ETS date.

16.  On 6 August 1976, the applicant was notified that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1964.  Along with the clemency discharge, the applicant received a DD Form 215, dated 19 December 1975, that shows a clemency discharge had been issued.

17.  On 27 July 1977, the applicant's discharge was reviewed by the Army Discharge Review Board (ADRB) and a determination was made that a change in the characterization of his service was warranted.  Accordingly, his DD Form 214 was voided and a new DD Form 214 was issued that shows a character of service of under honorable conditions (general).  This DD Form 214 erroneously shows he entered active duty on 5 January 1965.

18.  On 28 July 1978, the ADRB notified the applicant that his discharge was reviewed and that his discharge upgrade was affirmed and on 8 August 1978, he was accordingly issued a DD Form 215. 

19.  On 1 September 1978, the ADRB re-reviewed the applicant’s previous upgrading of his discharge and formed his Department of Defense Special Discharge Review Program (DOD-SDRP) upgrade.  

20.  Army Regulation 635-5 (Separation Documents) establishes 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.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 21 (Time Lost) of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S.C., section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10, U.S.C., section 972 is not creditable service for pay, retirement, or veteran’s benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should show he completed 4 years of total active service instead of 2 years, 9 months, and 4 days, as currently shown.

2.  The evidence of records shows that the applicant initially enlisted in the Regular Army for a period of 3 years on 5 January 1966.  His original ETS date was 4 January 1969.  However, he was discharged on 10 September 1969 and was credited with 2 years, 9 months, and 4 days of active service.

3.  The period of service from 5 January 1966 (erroneously shown as 1965 on his reissued DD Form 214) to 10 September 1969 equals 3 years, 8 months, and 6 days; however, the applicant had 209 days lost time prior to ETS and 127 days subsequent to ETS, which equals 336 days, or 11 months and 6 days, as a result of being AWOL and/or in confinement.  This lost time is not creditable.  When subtracted from the total period covered by the DD Form 214, the applicant’s net creditable active service equals 2 years, 9 months, and 2 days.  He received
2 extra days of creditable active service due to an administrative oversight.

4.  In accordance with Army Regulation 635-5, the applicant’s inclusive dates of lost time due to being AWOL and/or in confinement are reflected in item 26 
(Non-Pay Periods Time Lost) and item 32 (Remarks) on his DD Form 214.  Therefore, the applicant’s DD Form 214 is correct as currently constituted.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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, he 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)                                         AR20090000239



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ABCMR Record of Proceedings (cont)                                         AR20090000239



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