BOARD DATE: 23 September 2010
DOCKET NUMBER: AR20100008104
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 12c (Net Active Service This Period) be corrected to show 2 years and 4 days of service vice 1 year, 11 months, and 27 days.
2. The applicant states he entered active duty on 29 January 1986 and he was discharged on 2 February 1988. This service equals 2 years and 4 days.
3. The applicant provides a copy of his DD Form 214.
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 applicants military records show he enlisted in the Regular Army for
3 years on 29 January 1986 and was awarded the military occupational specialty of motor transport operator.
3. The applicant accepted two nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice for possession of THC (marijuana) and for driving while intoxicated.
4. On 29 October 1987, the applicant was convicted by a summary court-martial for the breach of peace and being drunk and disorderly. His sentence included confinement for 10 days.
5. The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 21 (Time Lost) "FROM 871029 THRU 871105 DAYS 8 REASON CMA" (from 29 October 1987 thru 5 November 1987 by reason of confinement by military authorities).
6. The applicant was issued a general discharge due to unsatisfactory performance on 2 February 1988. The DD Form 214 he was issued, item 12c, shows 1 year, 11 months, and 27 days. Item 29 (Dates of Time Lost During This Period) shows 871029 871105.
7. The applicant served from 29 January 1986 to 2 February 1988, this service equals 2 years, and 3 days plus 1 day (Inclusive) which equals 2 years and
4 days.
8. The applicant's lost time from 29 October 1987 to 5 November 1987 equals
8 days (lost time is counted on actual calendar days and inclusive days are not added or subtracted).
9. Therefore, 2 years and 4 days of service minus 8 days equals 1 year,
11 months, and 26 days.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's period of service spans 2 years and 4 days, 8 days of time lost time was subtracted.
2. After the applicant's lost time is subtracted, he has 1 year, 11 months, and
26 days of service.
3. It is the policy of the ABCMR not to make an applicant worse off than he was when he applied to the ABCMR. As such, his DD Form 214 will not be corrected to take away 1 day of active service that he did not earn.
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) AR20100008104
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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