IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100009977 


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 (Report of Separation from Active Duty) to show that he was credited with 24 additional days of active service.

2.  The applicant states that his total active service is incorrect because it does not include the 24 days he spent in military confinement.  He goes on to state that he was paid while in confinement; therefore, he should have received service credit for that time.

3.  The applicant provides a copy of his DD Form 214 and a copy of his DD Form 215 (Correction to 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 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 in Portland, OR on 7 May 1971 for a period of 3 years and training in the administrative career management field.  He completed his basic training at Fort Lewis, WA and he was transferred to Fort Ord, CA to undergo his advanced individual training.

3.  On 2 August 1971 he went absent without leave (AWOL) and remained absent in a deserter status until he was returned to military control at Fort Lewis on 16 December 1971.  He was subsequently placed in pre-trial confinement on 17 December 1971 pending disposition of his AWOL/deserter offense.

4.  Charges were preferred against the applicant on 21 December 1971 for being AWOL from 2 August to 16 December 1971.

5.  On 28 December 1971, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  The appropriate authority approved his request on 6 January 1972 and directed issuance of an Undesirable Discharge Certificate.

7.  On 10 January 1972, he was released from confinement and he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  His DD Form 214 show, in pertinent part, the following:

* Item 18a (Net Active Service This Period), the entry "0 [year] 2 [months] 24 [days]"
* Item 18c (Total Active Service), the entry "0  2  24)
* Item 18e (Total Service for Pay), the entry "0  2  24"
* Item 21 (Time Lost), the entry "160 days"
* Item 27 (Remarks), the entry "DAYS LOST UNDER 10 USC 972 FROM:  17 DEC 71 TO 10 JAN 92."

His time spent in confinement from 17 December 1971 to 10 January 1972 totaling 24 days was counted as time lost.

8.  On 21 May 1976, the applicant was notified that he had completed his alternative service pursuant to Presidential Proclamation 4313 of 16 September 1974 and he was provided a Clemency Discharge (DD Form 1953A).

9.  On 20 June 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Department of Defense (DOD) Discharge Review Program (Special).  On 26 July 1977, the ADRB upgraded his undesirable discharge to a general discharge.

10.  DOD Financial Management Regulation 7000.14-R (DOD Military Pay and Allowances Entitlements Manual) provides in Table 1-1-2, in pertinent part, that time spent in confinement is creditable service when a member is acquitted or the sentence is set aside or disapproved.  If a member is released without trial or acquitted, the period of absence is also creditable. 

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for:

	a.  Items 18a through f, enter all service less time lost under Title 10, U.S. Code, section 972 and time lost subsequent to expiration of term of service.

	b.  Item 21, enter time lost under Title 10, U.S. Code, section 972, and time in an excess leave status for the preceding 2 years only.  This information is required by other Federal agencies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the 24 days he spent in pre-trial confinement should have been credited as active service has been noted and found to have merit.

2.  The applicable regulation provides that time served in confinement is creditable service if the member is released without trial.  Therefore, the applicant’s DD Form 214 should be corrected accordingly.
 
BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 18a of his DD Form 214 the entry "0  2  24" and replacing it with the entry "0  3  18";

	b.  deleting from item 18c of his DD Form 214 the entry "0  2  24" and replacing it with the entry "0  3  18";

	c.  deleting from item 18e of his DD Form 214 the entry "0  2  24" and replacing it with the entry "0  3  18";

	d.  deleting from item 21 of his DD Form 214 the entry "160 DAYS" and replacing it with the entry "`146 DAYS"; and

	e.  deleting from item 27 of his DD Form 214 the lost time period of 17 Dec 1971 to 10 Jan 1972



      _______ _   __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)                                         AR20100009977



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ABCMR Record of Proceedings (cont)                                         AR20100009977



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