IN THE CASE OF:
BOARD DATE: 4 March 2010
DOCKET NUMBER: AR20090012862
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 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank as specialist four (SP4)/E-4; to delete the entry in Item 26a (Non-Pay Periods Time Lost),
"30 APR 71 4 JUN 71"; and to change the entry in Item 30 (Remarks)
"45 DAYS LOST UNDER 10 USC 972."
2. The applicant states that his court-martial was reversed on appeal and he needs his records corrected to establish eligibility for certain benefits.
3. The applicant does not provide any additional documents 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 applicants 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 applicants 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 that he was inducted into the Army of the United States on 28 July 1969, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman), and he was stationed in Europe.
3. Between 10 November 1969 and 9 February 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on four occasions for being absent without leave (AWOL), on two occasions for failing to go at the time prescribed to his appointed place of duty, and for disobeying a lawful order. In the applicant's last NJP his punishment included a reduction from SP4/E-4 to private first class (PFC)/E-3.
4. On 21 March 1971, the applicant was convicted by a summary court-martial for failure to go at the time prescribed to his appointed place of duty. He was sentenced to a reduction to private (PV2)/E-2 and restriction for 30 days.
5. On 30 April 1971, the applicant was convicted by a special court-martial for carrying a concealed weapon. He was sentenced to confinement for 6 months, forfeiture of $90.00 a month for 6 months, and reduction to private (PV1)/E-1. However, while the convening authority approved that portion of the sentence as pertained to the forfeiture of pay and reduction in grade, the convening authority only approved confinement for 37 days.
6. The applicant was honorably released from active duty on 30 July 1971 as an early separation of an overseas returnee. His DD Form 214 shows in item 5 a/b his rank as PV1/E-1; it shows in Item 26a the entry "3 NOV 69 - 4 NOV 69,
31 JUL 70 - 6 AUG 70, 30 APR 71 - 4 JUN 71"; and in Item 30 the entry "45 DAYS LOST UNDER 10 USC 972."
7. The Department of Defense Pay Manual, Table 1-1-2, Rule 8 states that a period of absence is not creditable when the absence is because of confinement for more than one day (24 consecutive hours) while awaiting trial (if the trial results in conviction) or confinement as the result of the court-martial sentence. In addition, Rule 2 of this table states that unauthorized absence of more than 1 day is not creditable service. This precludes any pay and allowances for a period of AWOL of over 1 day.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence that the applicant's court-martial conviction was "reversed." There is evidence that the 4 months confinement the applicant was sentenced to was reduced to confinement for 37 days.
2. The timeframe 30 April to 4 June 1971 is 36 days, which equates to the applicant's modified sentence. As such, it would appear the entry in Item 26a is correct.
3. This 36 days of lost time, added to the applicant's other two periods of lost time, equals 45 days of lost time. Therefore, the entry in Item 30 is also correct.
4. In view of the foregoing there is no basis for granting the applicant's requested 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) AR20090012862
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ABCMR Record of Proceedings (cont) AR20090012862
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