IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100014346 


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 item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected by deleting the periods of lost time from 27 March to 14 October 1969 and 
5 to 19 March 1970. 

2.  The applicant states he was in the hospital at Camp Kooye for 2 months and 15 days.  He was discharged from Okinawa to Travis Air Force Base (AFB) and then on to Tinker AFB where he got paid.  He was in an absent without leave (AWOL) status after he got back to the United States for 4 to 5 months.  He turned himself in at Fort Bliss, TX.  

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 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's records show he enlisted in the Regular Army for a period of 3 years on 7 October 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 64B (Heavy Vehicle Driver).  

3.  His records further show he served in Okinawa from on or about 30 August 1967 to 26 February 1969.  He was subsequently reassigned to the 3rd Squadron, 3rd Armored Cavalry Regiment, Fort Lewis, WA.

4.  On 27 March 1969, he departed his unit in an AWOL status but he ultimately returned to military control on or about 14 October 1969.  

5.  On 5 March 1970, he was convicted by a special court-martial at Fort Lewis, WA, for one specification of being AWOL from on or about 27 March 1969 to 
14 October 1969.  The court sentenced him to confinement at hard labor for
2 months, a forfeiture of $109.00 pay for 6 months, and reduction to the lowest enlisted grade.  

6.  He was placed in confinement from 5 March 1970 to 19 March 1970.

7.  On 20 March 1970, the convening authority approved his sentence but suspended the portion of the sentence pertaining to confinement at hard labor for 2 months until 1 May 1970.  

8.  He was honorably released from active duty on 9 May 1970 under the provisions of Army Regulation 635-200 (Personnel Separations) by reason of expiration of his term of service (ETS) and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

9.  The DD Form 214 he was issued at the time shows he completed 2 years, 11 months, and 27 days of creditable active service and he had 216 days of lost time.  Item 30 shows the following entry:  "216 days of time lost under section 972, Title 10, U.S. Code, from 27 March to 14 October 1969 and 5 March 1970 to 19 March 1970.  Enlisted member separated with an adjusted ETS per section I, paragraph 2-2, Army Regulation 635-200." 

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Item 26a (Non-Pay Periods Time Lost) of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reported in an AWOL status from 27 March 1969 to 14 October 1969.  He was subsequently convicted by a special court-martial for this absence.  There is no evidence he was in the hospital during this period.  Even if he were in a hospital for 2 months and 
15 days, the contested period is over 6 months in duration.  His alleged hospital stay, even if corroborated, is inconsistent with his lengthy AWOL.  His lost time is therefore properly shown on his DD Form 214

2.  The evidence of record shows he was convicted by a special court-martial on 5 March 1970 and he was sentenced to confinement at hard labor for 2 months.  However, he was released on 19 March 1970 as a result of a suspension of his sentence ordered by the convening authority.  Nevertheless, this period is considered lost time and it is properly shown on his DD Form 214.

3.  By law and regulation, periods of AWOL or confinement are considered lost time and the time is not creditable service for pay, retirement, or veteran’s benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of lost time were made up.  Since both entries are correctly shown on his DD Form 214, he is not entitled to the requested relief.

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)                                         AR20100014346



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ABCMR Record of Proceedings (cont)                                         AR20100014346



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