IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009028 


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 item 12c (Net Active Service This Period) on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show 2 years and 4 days of active service.

2.  The applicant states, in effect, that his net active service and his lost time are not entered correctly on his DD Form 214.

3.  The applicant provides, in support of his application, copies of his DD Form 214; three pages from his enlistment contract; a DA Form 4187 (Personnel Action); and his previous Army Board for Correction of Military Records (ABCMR) decision AR20040002622, dated 7 April 2005.

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 personnel records show he enlisted in the Regular Army on 3 January 1985 for a period of 3 years.  Therefore, his normal expiration of term of service (ETS) date was 2 January 1988.

3.  A DA Form 4187, dated 8 January 1987, shows the applicant was absent without leave (AWOL) effective 8 January 1987.

4.  A DA Form 4187, dated 24 January 1987, changed the applicant's status from AWOL to confined by civil authorities effective 1945 hours, 22 January 1987.  The Remarks section of this form indicates the applicant was apprehended and being held at the Killeen Police Department, Killeen, TX.

5.  A DA Form 4187, dated 24 January 1987, changed the applicant's status from confined by civil authorities to hospitalized effective 2148 hours, 22 January 1987.  The Remarks section of this form indicates he was admitted to Darnall Army Hospital, Fort Hood, TX for frostbite on 22 January 1987.

6.  A DA Form 4187, dated 30 January 1987, changed the applicant's status from hospital to confined by civil authorities effective 29 January 1987.  The Remarks section on this form indicates the applicant was released in the custody of the Killeen Police Department on 29 January 1987 and he was being held in the Bell County Jail, Belton, TX under civil charges.

7.  On 26 June 1987, the applicant was convicted in Bell County Court, TX of aggravated sexual assault.  On 24 July 1987, he was sentenced to 40 years confinement in the Texas Department of Corrections.

8.  On 20 April 1988, the applicant was approved for discharge under the provisions of chapter 14 of Army Regulation 635-200.

9.  On 25 May 1988, the applicant was discharged by reason of misconduct - commission of a serious offense with a general discharge.  He had completed 
2 years and 5 days net active service.  He also had 355 days of lost time prior to ETS and 143 days of lost time after his normal ETS date.  

10.  The applicant's DD Form 214 contains the following entries:

	a.  item 12a (Date Entered AD [active duty] This Period) - 85 01 03 (1985 January 3);

	b.  item 12b (Separation Date This Period) - 88 05 25 (1988 May 25);

	c.  item 12c (Net Active Service This Period) - 01 11 29 (1 year, 11 months, and 29 days);

	d.  item 29 (Dates of Time Lost During This Period) - "Time lost under 10 USC [United States Code] 972 870108-Time lost after normal ETS 880103-880525."

11.  Item 21 (Time Lost) on the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates the entire period from 8 January 1987 to 25 May 1988 was determined to be time lost.

12.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation provided, in pertinent part, that the beginning date of the continuous period of active duty (AD) for which the DD Form 214 is being issued be entered in Item 12a of the DD Form 214.  This regulation also provided that the date of separation be entered in Item 12b and that the net service for the period shown would be computed by subtracting Item 12a from Item 12b and then deducting any lost time and non-creditable service after the Soldier's expiration of term of service. 

13.  Army Regulation 635-5 also provided that in item 29 of the DD Form 214 time lost for enlisted personnel was to be entered as inclusive dates (yymmdd format) of time lost under 10 USC 972 as well as time lost after normal ETS.

14.  Title 10 USC Section 972, states, in pertinent part, that enlisted members of an armed force who desert; are absent from their organization, station, or duty for more than one day without proper authority, as determined by competent authority; are confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or are unable for more than one day, as determined by competent authority, to perform their duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from their misconduct are liable, after their return to full duty, to serve for a period that, when added to the period that they served before their absence from duty, amounts to the term for which they were enlisted or inducted. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his net service on his DD Form 214 should be 2 years and 4 days.



2.  The net active service for the period shown on a DD Form 214 is computed by subtracting Item 12a from Item 12b and then deducting any lost time and non-creditable service after the Soldier's expiration of term of service date. 

3.  By subtracting the date in item 12a (85 01 03) from the date in item 
12b (88 05 25) on the applicant's DD Form 214 his active service equals 
3 years, 4 months, and 23 days.  

4.  The entire period from 8 January 1987 to 25 May 1988 was determined to be lost time.  After subtracting the total amount of lost time which equals 1 year, 
4 months, and 18 days, his net service equals 2 years and 5 days.  Therefore, the entry in item 12c should show “02 00 05.”

5.  The current entry in item 29 of the applicant's DD Form 214 is incomplete in that it does not show the time lost under Title 10 USC Section 972.  The correct entry should be shown as time lost under Title 10 USC Section 972 870108 – 880102, and time lost after normal ETS 880103 - 880525.

BOARD VOTE:

____x____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by:

	a.  deleting the entry in item 12c and adding “02 00 05”; and



	b.  deleting the entry in item 29 and adding “Time lost under Title 10 USC Section 972 870108 - 880102, time lost after normal ETS date 880103 - 880525.”




      _______ _   _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)                                         AR20090009028



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ABCMR Record of Proceedings (cont)                                         AR20090009028



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