IN THE CASE OF:	  

		BOARD DATE:	    25 February 2010

		DOCKET NUMBER:  AR20090014132 


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 to item 22 (Statement of Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that item 22 of his DD Form 214 does not show his dates of creditable service.  He needs this to be corrected so that he may enroll in the Department of Veterans Affairs health care system.

3.  The applicant provides a copy of his DD Form 214 in support of his application.

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 records show he enlisted in the Regular Army in pay grade E-1 on 6 July 1964 for 3 years.  He was advanced to pay grade E-3 on an unknown date, which is the highest pay grade he held during his period of service.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments), shows he was assigned to Troop H, 2nd Reconnaissance Squadron, 3rd Armored Cavalry Regiment, on 24 November 1964.

4.  On 15 January 1965, the applicant was convicted pursuant to his plea by a general court-martial of one specification of stealing money by means of force and violence and with intent to commit robbery and committing an assault upon said person by holding his hands and striking him with his fists on the face and head on 4 January 1965.  He was sentenced to reduction to pay grade E-1, confinement at hard labor for 1 year, and forfeiture of all pay and allowances for 1 year.  The sentence was adjudged on 15 April 1965 and approved on 30 April 1965.  He was placed in confinement on 30 April 1965.

5.  A DD Form 1478 (Prisoner's Summary Continuation Sheet), dated 26 November 1965, stated the applicant was placed in confinement at Fort Leavenworth, Kansas, on 3 July 1965.  He was released from confinement on an unknown date.

6.  On 13 October 1965, the convening authority affirmed the general court-martial sentence and ordered it duly executed.

7.  The applicant's records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) that shows on 29 May 1966 he accepted punishment under Article 15 for absence without leave (AWOL) from 23-25 May 1966.  His sentence included a reduction to pay grade E-2 and 14 days of restriction and extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-2 on 27 May 1966.

8.  On 27 January 1967, the applicant was convicted pursuant to his plea by a special court-martial of one specification of AWOL from 12 August 1966 to 8 November 1966.  He was sentenced to forfeiture of $86.00 pay per month for 6 months, confinement at hard labor for 6 months, and reduction to the pay grade E-1.  The sentence was adjudged on 2 February 1967 and approved on 4 February 1967.  He was reduced to pay grade E-1 and placed in confinement.

9.  The applicant was discharged from active duty in pay grade E-1 on 19 May 1967 under conditions other than honorable.  Item 22 of his DD Form 214 shows the entry "amount not verified" for Item 22a(1) (Net Service This Period), Item 22a(2) (Other Service), Item 22a(3) (Total), Item 22b (Total Active Service), and item 22c (Foreign and/or Sea Service).  Item 30 (Remarks) contains the entry "total amount of service not verified due to availability of only temporary records."  Item 30 also contains the entry "known days lost under Title 10, U.S. Code, section 972:  280, 23-24 May 1966, 12 August 1966-7 November 1966, 9 November 1966-18 May 1967; due to availability of temporary records total amount cannot be computed."

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that the DD Form 214 would be prepared for all enlisted personnel ordered or called to active duty at the time of their release from active duty or discharge for each period of service.  Item 22a(1) would include the total service completed between the entry and separation dates less lost time under Title 10, U.S. Code, section 972.  Item 22a(2) would include any prior service not on active duty during the current enlistment.  Item 22a(3) was self-explanatory.  Item 22b would include the total active service beginning with the earliest period up to and including the current period of active duty, less any period served in the Reserve Components not on active duty, less any lost time.  Item 22c would include the total active duty outside the continental limits of the United States for the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the applicant enlisted in the Regular Army on 6 July 1964 with no prior service and was discharged on 19 May 1967.  He was credited with 280 days of lost time due to AWOL and confinement.  However, the records are unclear pertaining to the start and end dates of some of his periods of AWOL and confinement.  His creditable service cannot be computed without an accurate count of his lost time.  Therefore, without evidence, no corrective action can be taken to Item 22a(1), Item 22a(3), and Item 22b of his DD Form 214.

1.  The evidence also shows the applicant was stationed in Europe from 24 November 1964 to 3 July 1965, a period of 7 months and 10 days.  In accordance with regulatory guidance in effect at the time, lost time would not be excluded from this service.  Therefore, Item 22c of his DD Form 214 should be corrected to show a credit of 7 months and 10 days. Correction to Item 22c does not require any adjustment to the other blocks in Item 22 (Statement of Service).

3.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

_______  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in Item 22c of the applicant's DD Form 214 a credit of 7 months and 10 days and providing him a corrected separation document as a result of this change.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction to Items 22a(1), 22a(3), and 22b of the applicant’s DD Form 214.




      _______ _  _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)                                         AR20090014132



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ABCMR Record of Proceedings (cont)                                         AR20090014132



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