IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100014920 


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 the 5 days of lost time shown item 32 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be removed.  He also requests that he be awarded the Good Conduct Medal.

2.  The applicant states:

* from 12 April to 20 October 1961, he had a liberty pass for "normal off duty hours"
* he did not leave the post on 1 September 1961, he helped two men from his squad who left on leave for Texas carry their bags to their car.  His commanding officer was told he left post on 1 September 1961 carrying bags
* he left post on 2 September and returned on 4 September 1961
* on 1 September 1961, almost everyone was on leave because it was Labor Day
* he was threatened and reminded that he had refused an order to commit part of his $30.00 pay to the United Way so the captain could have 100 percent participation.  He refused to participate so the captain reduced him from the rank of specialist/E-4 to the rank of private first class/E-3
* his rank was restored 3 days later after the colonel questioned him about the incident
* he went on to serve with distinction as he always had until he was released from active duty (REFRAD) in 1962
* since his REFRAD he has had to explain the "black mark" on his DD Form 214 numerous times during pre-employment
* he never got a Army Good Conduct Medal and he was not absent without leave (AWOL) as he was accused
* he was cheated out of 5 days of pay and he was marked as something he was not
* the error and injustice remains on his military record

3.  The applicant provides:

* Headquarters, 7th Transportation Battalion (Truck) Special Orders Number 174, dated 11 September 1961
* Headquarters, 7th Transportation Battalion (Truck) Special Orders Number 176, dated 14 September 1961
* Honorable Discharge Certificate, dated 30 September 1964
* Copies of his Armed Forces Liberty Pass and his Meal Card, dated 12 April 1961

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 15 October 1958, the applicant enlisted in the Regular Army for 3 years in the pay grade of E-1.  He successfully completed training as a heavy truck driver and he was promoted through the ranks to the pay grade of E-4 with a date of rank of 25 February 1960.

3.  On 11 September 1961, Headquarters, 7th Transportation Battalion (Truck) Special Orders Number 174 were published reducing him to pay grade E-3 for misconduct, with a date of rank of 11 September 1961.  According to the orders his reduction was as a result of the imposition of nonjudicial punishment (NJP).  The record of NJP is not contained in his official military record.

4.  Headquarters, 7th Transportation Battalion (Truck) Special Orders Number 176 were published on 14 September 1961, revoking Special Orders Number 174.  His rank was restored to pay grade of E-4 effective 25 February 1960.

5.  The applicant's DA Form 24 (Service Record) shows he served in Europe from 23 March 1959 through 28 February 1961 and from 19 October 1961 through 2 February 1962.  His DA Form 24 shows he had 5 days of lost time from 1 September through 5 September 1961.  This document shows his conduct for the period 24 July through 20 September 1961 was "fair" and his efficiency was "excellent."

6.  The applicant was honorably REFRAD on 2 February 1962 as an overseas returnee.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows "None."  Item 32 shows "5 DAYS LOST UNDER 10 USC 972 FROM 1 SEP 61 THRU 5 SEP 61."

7.  Army Regulation 635-200 (Enlisted Personnel Separations) states that 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

8.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  His contentions are not substantiated by the evidence of record.

2.  The record of NJP is not filed in his record.  Therefore, it cannot positively be determined what specific act(s) of misconduct occurred that caused his reduction to the pay grade of E-3.  Although the orders reducing him were subsequently revoked, it does not show that he was not AWOL during the 5-day period shown on his DD Form 214.  Absent evidence to the contrary, it must be presumed that the 5 days of lost time is properly reflected on his DD Form 214.

3.  According to the applicable regulation, in order to be awarded the Good Conduct Medal, an individual must have had all "excellent" conduct and efficiency ratings and he did not.  The evidence of record shows he does not meet the criteria contained in Army Regulation 600-8-22 for award of the Good Conduct Medal.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100014920





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ABCMR Record of Proceedings (cont)                                         AR20100014920



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