IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011461 


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:

* He had no lost time
* He was discharged in the rank and pay grade of staff sergeant (E-6)
* He was honorably discharged
* He was reinstated on active duty

2.  The applicant states his DD Form 214 is incorrect and he is being denied military and/or veterans' benefits.

3.  The applicant provides:

* A letter from the National Personnel Record Center dated 15 February 2010
* A letter from the Army Review Boards Agency dated 26 March 2010
* Orders 354-303 dated 20 December 1978, discharging him from the Army
* Special Orders Number 254 dated 16 December 1974, discharging him from the U.S. Army Reserve (USAR) Control Group (Reinforcement)
* Special Court-Martial Order Number 262 dated 2 September 1977
* A memorandum from the Chief, Criminal Law, 7th Infantry Division, for the Staff Judge Advocate dated 4 May 1977, pertaining to his Article 15 appeal
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated 29 December 1976
* Special Orders Number 244 dated 2 December 1974 assigning him to the USAR Control Group (Delayed Entry)

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.  On 2 December 1974, the applicant enlisted in the USAR under the Delayed Entry Program.  On 16 December 1974, he enlisted in the Regular Army for 3 years, in the pay grade of E-1.  He completed training as a wireman and he was promoted through the ranks to specialist (E-4).

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 29 December 1976 and 5 April 1977 for the following offenses:

* As a sentinel, being found sleeping on his post
* Willfully disobeying a lawful order
* Being disrespectful toward his senior noncommissioned officer (NCO)

4.  His punishment included:

* Reduction to the pay grade of E-3
* Forfeiture of pay
* Restriction 
* Extra duty



5.  On 1 July 1977, the applicant was convicted by a special court-martial of the following offenses:

* Two specifications of being absent without leave (AWOL):

* 6 May 1977 until 10 May 1977
* 25 May 1977 until 9 June 1977

* Failure to repair
* Two specifications of disobeying his superior officer
* Two specification of being disrespectful towards an NCO
* Being incapacitated for duty
* Breaking restriction
* Two specifications of communicating a threat

6.  His punishments included:

* A Bad Conduct Discharge
* Confinement at hard labor for 2 1/2 months
* Reduction to the pay grade of E-1

7.  On 31 January 1978, the appellate review set aside the finding of guilty and the sentence and the applicant was restored to duty.

8.  On 21 November 1978, the applicant was notified that charges were pending against him for being AWOL from 12 August 1978 until 20 November 1978.

9.  The facts and circumstances surrounding the applicant's discharge are not on file.  His DD Form 214 shows he was discharged on 21 December 1978, in the pay grade of E-1, under other than honorable conditions, under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  

10.  Item number 18(a) (Net Active Service This Period) and 18(c) (Total Active Service) on his DD Form 214 shows he had 3 years, 5 months, and 13 days of creditable active service.  Item number 18(e) (Total Service for Pay) shows he had 3 years, 5 months, and 27 days of service for pay.  Item number 21 (Time Lost) shows 203 days, and item number 27 (Remarks) on his DD Form 214 shows the following:

* 22 days excess leave from 30 November 1978 through 21 December 1978
* 203 days lost under 10 USC 972:

* 4 days – 6 May 1977 through 9 May 1977
* 15 days – 26 May 1977 through 8 June 1977
* 
84 days – 10 June 1977 through 1 September 1977 (confinement)
* 100 days – 12 August 1978 through 19 November 1978

11.  His DD Form 214 also shows he was unavailable for signature when it was prepared.

12.  A review of the applicant's records does not show that he served any time in the Army after his discharge on 21 December 1978.

13.  On 30 September 1981, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, of provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

17.  Army Regulation 635-200, 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.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 at the time, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it stated that when the separation authority determines that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted grade.

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  This regulation directs that the purpose of the separation document is to provide the individual with documentary evidence of his or her active duty military service.  It is important that information entered on the form should be complete and accurate.

21.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states that all service shown in item 18(a) through 18(e) will be less time lost under Title 10, U.S. Code, section 972 and time lost subsequent to expiration of term of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His records show that he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate and, in accordance with Army Regulation 600-200, he was reduced to lowest enlisted grade, pay grade E-1, at the time of his discharge.  This information is properly shown on his DD Form 214.

2.  Although his record show that the findings and sentence of his special court-martial conviction was set aside, the applicant went AWOL again on 12 August 1978 and he remained absent in desertion through 19 November 1978.  He submitted a request for discharge and he was not restored to duty.  He was discharged accordingly.

3.  In regard to the applicant's lost time, according to the applicable regulation, the 84 days he was in confinement is not considered lost time since the findings and sentence of his special court-martial conviction were set aside and he was restored to duty.  His service should be recalculated and the proper amount of lost time and active service should be shown on his DD Form 214.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 amending his DD Form 214 dated 21 December 1978 as follows:

* Item 18(a) to show 3 years, 8 months and 5 days
* Item 18(c) to show 3 years, 8 months and 5 days
* Item 18(e) to show 3 years, 8 months and 15 days
* Item 21 to show 119 days
* Item 27 delete "84 days 10 Jun thru 1 Sep 77"

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 amending his DD Form 214 to show the following:

* He had no lost time
* He was discharged in the rank and pay grade of staff sergeant (E-6)
* He was honorably discharged
* He was reinstated on active duty



      _______ _  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)                                         AR20100011461



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ABCMR Record of Proceedings (cont)                                         AR20100011461



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