IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100007421 


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 item 26a (Non Pay Periods Time Lost) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 11 August 1971 and item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) to show he had no lost time for the period 21 October 1970 through 1 February 1971.

2.  The applicant states:

* The time period in question was sanctioned to justify the issuance of a general discharge
* His discharge was imposed under the provisions of Army Regulation    635-200, chapter 10, for the good of the service in lieu of trial by        court-martial
* His discharge was improper
* The time he was held in confinement was unjustly entered on his DD Form 214 and his DA Form 20 as it was after his adjusted expiration term of service date of 28 May 1971

3.  The applicant provides the following:

* Brief of Arguments, undated
* DD Form 214
* DA Form 20

* DA Form 8-276 (Dental Treatment Plan) dated 5 May 1971
* Request for discharge for the good of the service dated 14 May 1971
* Transmittal of Court-Martial Charges, undated
* DD Form 493 (Extract of Military Record of Previous Convictions), undated
* DD Form 458 (Charge Sheet) dated 6 June 1971
* DA Form 2494 (Disposition Form) dated 14 July 1971
* Approved discharge request dated 30 July 1971
* Notification of approved separation action dated 3 August 1971
* An addendum to his Brief of Arguments (Received on 12 April 2010)
* Copies of Military Pay Vouchers

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 was inducted into the Army on 16 January 1969 and he completed his training as supplyman.  

3.  Nonjudicial punishment (NJP) was imposed against the applicant 19 February 1969 for being absent without leave (AWOL) on 15 February 1969.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

4.  The applicant was convicted, pursuant to his plea, by a special court-martial on 17 July 1969 for being AWOL from 5 June 1969 until 29 June 1969.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $82.00 per month for 6 months.

5.  The applicant had NJP imposed against him on the following dates for the stated offenses:

* 14 July 1970, AWOL from 13 July 1970 until 14 July 1970

* 14 August 1970, failure to be at his appointed place of duty on 3 August 1970
* 26 February 1971, AWOL from 14 October 1970 until 21 October 1970

6.  His punishments included:

* Reduction in pay grade
* Forfeitures of pay
* Restrictions
* Extra duties

7.  The applicant's records show his status changed from AWOL to confinement on 21 October 1970 and that he remained in confinement until 1 February 1971 (103 days).

8.  The available records show that the applicant was under a criminal investigation and had been placed in pretrial confinement on 12 May 1971, for stealing an AM-FM Hitachi Transistor Radio.  He consulted with counsel on 14 May 1971 and he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that once his "resignation" was submitted it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him.

9.  On 15 June 1971, the applicant was notified that charges were pending against him for the following offenses:

* Stealing a small Hitachi radio of a value of $20.00 from another Soldier
* Unlawfully carrying a concealed weapon (.38 Caliber revolver)
* Wrongfully having in his possession 1 ounce, more or less, of a habit forming narcotic drug (heroin)
* Violating a lawful general regulation by wrongfully having in his possession one hypodermic syringe

10.  On 14 July 1971, the applicant submitted a request to withdraw his request for discharge.  However, the appropriate authority approved his request for discharge on 30 July 1971 and he directed the issuance of a General Discharge Certificate.

11.  Accordingly, on 11 August 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 11 months, and 6 days of total active service and he had approximately 233 days of lost time due to AWOL and confinement.  He was issued a General Discharge Certificate.  

12.  Item 26a of his DD Form 214 shows his periods of lost time as follows:

* 1 June 1969 until 28 June 1969
* 17 July 1969 until 19 October 1969
* 2 September 1970 until 3 September 1970
* 5 October 1970 until 6 October 1970
* 14 October 1970 until 19 October 1970
* 21 October 1970 until 1 February 1971

13.  Item 44 of the applicant's DA Form 20 mirrors the lost time shown on his DD Form 214.

14.  In the Brief of Arguments the applicant submitted he states the following:

* The Department of Veterans Affairs (VA) Regional Office denied his claim for a service connected disability rating
* The VA specifically cites personnel records as evidence in making its decision with reference to the "time period" as not counted as active duty
* He was advised by his legal counsel to submit a request for discharge for the good of the service in lieu of trial by court-martial
* His counsel's advice amounted to gross ineffective assistance of counsel as charges had not been preferred against him
* Charges were not preferred against him until 1 month after he submitted his request for discharge
* It was improper for him to submit a request for discharge prior to knowing if a trial would actually take place
* He never signed a request admitting guilt to any charges
* His 103 days of El Paso County jail time was recalculated after his arrest and added to the 130 days of bad time to reflect 233 days of lost time

15.  In the Addendum to the Brief of Arguments he submits he basically repeats the contentions made in his Brief of Arguments.

16.  The Military Voucher he submits cover his period on active duty.  However, they do not show whether he was actually performing his duties from 21 October 1970 through 1 February 1971.

17.  Army Regulation 635-200 (Personnel Separations), chapter 1-21 states every Soldier in active Federal service who is unable for more than 1 day to perform duty will complete the full term of service or obligation, exclusive of such time lost.  The term will be served when the Soldier returns to full duty status.  Lost time refers to periods of more than 1 day when a Soldier on active duty cannot perform duty because of the following:

* Desertion
* Absence without proper authority
* Confinement under sentence
* Confinement while awaiting trial or disposition of Soldier’s case, if trial results in conviction
* Intemperate use of drugs or alcohol
* Disease or injury, the result of Soldier’s misconduct

18.  Army Regulation 635-200 further states that time lost during an enlistment period will be made good at the end of the enlistment period.  When an enlistment is extended by law, time lost will be made good at the end of the extension.  This requirement may be waived by Headquarters Department of the Army (HQDA).

19.  The same regulation provides that unless a trial results in an acquittal or the sentence does not include a punitive discharge, even though one could have been adjudged by the court, a request for discharge submitted per Army Regulation 635-200, chapter 10, may be withdrawn only with the consent of the commander exercising general court-martial jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and evidence have been considered.  However, he has not shown error or injustice in regard to the lost time shown on his DD Form 214 or his DA Form 20.

2.  Even he admits that during the period of lost time in question (21 October 1970 until 1 February 1971) he was in the El Paso County jail.  Therefore, he could not have been performing his assigned duties.

3.  In accordance with the applicable regulation, lost time refers to periods of more than 1 day when a Soldier on active duty cannot perform duty.  He never made up the time that he lost as a result of being jailed during the period of time in question and there is no evidence in the available records that shows the 

separation authority deemed that his lost time was due to unusual circumstances.

4.  He has not provided evidence to show he was granted a waiver of lost time for the period 21 October 1970 through 1 February 1971; therefore, this information is properly reflected on his DD Form 214 and his DA Form 20 as lost time.

5.  The applicant had NJP imposed against him on 26 February 1971 for being AWOL from 14 October 1970 through 21 October 1970.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial for offenses totally unrelated to the period of lost time that he is now questioning and, although he later made an attempt to withdraw his request, the appropriate authority approved his request.  

6.  While it does appears that he submitted a request for discharge prior to charges being preferred against him, his request for discharge was not approved until charges had been preferred against him.  The commander exercising general court-martial authority was within his authority to approve the request for discharge once it was submitted.  There was nothing improper about the approval authority accepting his request for discharge once it was submitted.

7.  Additionally, he was issued a General Discharge Certificate based on his overall record of service.  There is no injustice in the type of discharge he received as his service was not fully honorable.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100007421



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1