IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090015693 


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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to reflect that he was discharged on 21 December 1977, that he served in Vietnam from January 1975 to June 1975, and that he be paid for the 67 days he served in confinement.

2.  The applicant states that he served on active duty from 29 August 1974 to 21 December 1977 and that he originally received an undesirable discharge that was later changed to a discharge under honorable conditions.  However, his DD Form 214 incorrectly reflects that he was discharged on 21 December 1976 and does not reflect his service in Vietnam.  He also states that he desires to be paid for his time in confinement.

3.  The applicant provides a copy of a letter, dated 24 August 1977, from the Adjutant General informing him that the Army Discharge Review Board (ADRB) had upgraded his undesirable discharge to a general discharge and that he could apply to the Army Finance and Accounting Center for any monetary benefits to which he may be entitled.  He also provides four letters of support.

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 enlisted in the Regular Army on 30 August 1974 for a period of 3 years, training as a radio relay and carrier attendant, and assignment to Fort Bliss, Texas.

3.  He completed his basic training at Fort Knox, Kentucky, and was transferred to Fort Gordon, Georgia, to undergo his advanced individual training.  He failed to complete his training and was transferred to Fort Lee, Virginia, to undergo training as a cook.  He completed that training in April 1975 and was transferred to Fort Bliss, his first and only permanent duty assignment on 21 April 1975.

4.  On 28 October 1976, he was convicted by a special court-martial of seven specifications of failure to go to his place of duty.  He was sentenced to confinement at hard labor for 5 months and a forfeiture of $200.00 per month for 5 months.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement.

5.  On 15 December 1976, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5, for misconduct due to his frequent involvement in incidents of a discreditable nature with authorities.  He cited 37 acts of minor misconduct by the applicant during his stay at the retraining brigade as the basis for his recommendation.

6.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 21 December 1976.  He had served 2 years, 1 month, and 15 days of total active service and had 67 days of lost time due to being absent without leave and confinement.  He signed a request for his DD Form 214 on 21 December 1976 and declined a copy containing the narrative reason for separation.

9.  On 24 August 1977, the ADRB upgraded the applicant's undesirable discharge to a general discharge and issued him a new DD Form 214 to that effect.  His DD Form 214 shows that he was discharged under honorable conditions on 21 December 1976 and that he had not completed any foreign service during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to reflect that he was discharged on 21 December 1977 and that he served 6 months in Vietnam has been noted and found to lack merit.

2.  The evidence of record clearly shows that the applicant never served outside the continental United States and that he was discharged on 21 December 1976.  Therefore, in the absence of evidence to the contrary, there appears to be no basis to grant his request.

3.  The applicant's contention that he should be paid for his lost time has also been noted and found to lack merit.  Inasmuch as he was under a forfeiture of pay as a result of his court-martial conviction and since he has provided no evidence to show that he was not properly paid, there appears to be no basis to grant that portion of his request, especially since he was informed that he could apply to the Defense Finance and Accounting Service for any monies owed him.

4.  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.

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)                                         AR20090015693



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ABCMR Record of Proceedings (cont)                                         AR20090015693



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