IN THE CASE OF:	  

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090005537 


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, service credit for lost time.

2.  The applicant states that his records show the period from 3 September 1972 to 17 January 1973 as lost time.  He adds that when he went to the U.S. Army Retraining Brigade at Fort Riley, KS, he was told that he would get back the days the Army took from him as a result of a court-martial.  He adds that he is sorry for his infractions and it would mean a great deal to him if he could get those days back.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 18 January 1973; a copy of his legal name change, dated 2 March 2004; and a copy of the Department of Veterans Affairs decision, dated 31 July 2008, regarding his service-connected disability, 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 (RA) for a period of 3 years on 28 July 1972.  He was subsequently assigned to Company B, 2nd Battalion, 1st Training Brigade, Fort Ord, CA, for completion of basic combat training.  

3.  On 27 October 1972, the applicant pleaded guilty at a Special Court-Martial to four specifications of leaving his appointed place of duty without authority on or about 26 and 27 August 1972 and 1 and 2 September 1972; one specification of being disrespectful in language toward a superior noncommissioned officer (NCO) on or about 2 September 1972; one specification of disrespecting a superior chief warrant officer two (CW2) on or about 14 September 1972; one specification of disobeying a lawful order from a superior NCO on or about 14 September 1972; one specification of disobeying a lawful order from a superior CW2 on or about 14 September 1972; one specification of disrespecting another superior NCO on or about 14 September 1972; and one specification of assaulting another Soldier by pushing him against the wall on or about 14 September 1972.  The Court found the applicant guilty of all charges and specifications and sentenced him to confinement at hard labor for 4 months and a forfeiture of $50.00 pay per month for 4 months.  The sentence was adjudged on 27 October 1972 and was approved on 9 November 1972.  He was confined at Fort Riley, KS.

4.  On 10 January 1973, the applicant’s immediate commander notified the applicant by memorandum that he was being recommended for separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.

5.  On 10 January 1973, the applicant acknowledged receipt of the notification memorandum and subsequently consulted with counsel regarding his notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement in his own behalf.  He further indicated he understood that he might expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law. 

6.  On 10 January 1973, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-212 for unsuitability.  The immediate commander remarked that the discharge was recommended because of the applicant's unusual behavioral pattern and inability to adjust to the structure of military life.  His actions had become detrimental to the unit's mission.  He further recommended a General Discharge Certificate.

7.  On 10 January 1973, the applicant's intermediate commander also recommended approval of the applicant's elimination from the Army with a General Discharge Certificate.  

8.  On 17 January 1973, the separation authority approved the applicant's discharge for unsuitability under the provisions of chapter 13 of Army Regulation 635-200 (superseded Army Regulation 635-212) and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 January 1973.  The DD Form 214 he was issued at the time confirms he completed 1 month and 6 days of creditable active military service and had 135 days of lost time (3 September 1972 through 17 January 1973).

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  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 and provides the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  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 26a (Non-Pay Periods 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. Code, section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10, U.S. Code, 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 he should receive credit for time lost.

2.  The evidence of record shows that the applicant was convicted by a Special Court-Martial that sentenced him to confinement at hard labor for 4 months and a forfeiture of pay.  Accordingly, he was confined from 3 September 1972 through 17 January 1973.  By law and regulation, this period of confinement is considered lost time and is not creditable service for pay, retirement, or veteran’s benefits.  There is no evidence in the available record and the applicant did not provide any evidence that shows he made this period of lost time up.  Therefore, it is correctly shown on his DD Form 214

3.  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.



      __________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)                                         AR20090005537



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ABCMR Record of Proceedings (cont)                                         AR20090005537


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