BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029546 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show service credit for all of the time he spent on active duty.

2.  He states:

* His DD Form 214 only shows 2 months and 11 days of total active service
* He knows he had more active duty time than what is listed on his
DD Form 214
* He started basic training at Fort Bliss, then to Fort Hood, then to Fort Polk, and back to Fort Hood

3.  He provides no additional documents.

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 (RA) on 29 April 1969 for a period of 3 years.

3.  His DA Form 20 (Enlisted Qualification Record) shows in Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration of Term of Service (ETS)) as continued in Item 45 (Item Continuation), the entries:

FROM
TO (INCLUSIVE)
DAYS
REASON
14 May 1969
20 May 1969
       7
        AWOL
26 May 1969
28 May 1969
       3
        AWOL
29 May 1969
8 July 1969
     41
        DFR
9 July 1969
27 July 1969
     19
        AWOL
31 July 1969
31 July 1969
       1
        AWOL
16 August 1969
29 October 1969
     74
        AWOL
30 October 1969
16 November 1969
     18
        Conf
9 December 1969
28 July 1970
    231
         AWOL
29 July 1970
28 July1970
     42
         Conf
AWOL = Absent without leave
DFR = dropped from the rolls of his unit
Conf = Confinement

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for AWOL from:

* 14 to 15 May 1969
* 25 May to 2 June 1969
* 15 to 27 June 1969

5.  His DA Form 20B (Insert Sheet to DA Form 20 - Record of Court Martial Conviction) shows that his conviction by a special court-martial was announced in Special Court-Martial Order Number 1678, dated 15 December 1969, issued by Headquarters, U.S. Army Garrison, Fort Hood, TX, for three specifications of AWOL from:
* 
9 July to 28 July 1969
* 30 July to 31 July 1969
* 16 August to 20 October 1969

6.  On 22 September 1970, he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with issuance of a General Discharge Certificate.  His DD Form 214 show shows in:

	a.  item 22a (Creditable Service for Basic Pay Purposes) the entries:

* (1) (Net Service this Period) - "0 years, 2 months, and 11 days"
* (2) (Other Service) - "0 years, 0 months, and 0 days"
* (3) (Total) - "0 years, 2 months, 11 days"

	b.  Item 22b (Total Active Service) - "0 years, 2 months, and 11 days"

	c.  Item 26a (Non-Pay Periods Time Lost) the entries:

* 14 May 1969 - 20 May 1969
* 26 May 1969 - 27 June 1969
* 30 July 1969 - 30 July 1969
* 16 August 1969 - 16 November 1969
* 9 December 1969 - 18 September 1970

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Section III contains guidance on the preparation of the DD Form 214.  

   a.  Item 22 states to use extreme care in completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  It shows for:

* item 22a(1), enter the total service completed, less time lost under Title 10, U.S. Code, section 972, and time lost subsequent to term of service
* item 22a(2), enter all prior service excluding any service shown in item 22a(1)
* 
item 22a(3), enter total active service the individual has completed beginning with the earliest date of active service up to and including current period of active duty, and less time lost under Title 10, U.S. Code, section 972

	b.  Item 22b, enter total active service the individual has completed beginning with the earliest period of active service up to and including current period of active duty, less time lost under Title 10, U.S. Code, section 972.

	c.  Item 26a, enter inclusive date of non-pay periods/time lost during preceding 2 years.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant:

	a.  served in the RA from 29 April 1969 through 22 September 1970, and

   b.  he had time lost from 14 May to 20 May 1969, 26 May to 27 July 1969, 30 July to 30 July 1969, 16 August to 16 November 1969, and 9 December 1969 to 18 September 1970 due to AWOL, DFR, or confinement.

2.  A calculation for the above periods under review shows the following:

1970  09  22  date discharged (RA)
   - 1969  04  29  date of enlistment (RA)
   =    01  04  24
   +                  1  day inclusive
   =    01  04  25  time in RA (Net Active Service)

1969  05  20  ending date of AWOL
   - 1969  05  14  beginning date of AWOL
   =    00  00  06
   +                  1  day inclusive
   =    00  00  07  time lost (To Be Subtracted from Net Active Service)

1969  07  27  ending date of AWOL
   - 1969  05  26  beginning date of AWOL
   =    00  02  01
   +                  1  day inclusive
   =    00  02  02  time lost (To Be Subtracted from Net Active Service)

1969  07  30  ending date of AWOL
   - 1969  07  30  beginning date of AWOL
   =    00  00  00
   +                  1  day inclusive
   =    00  00  01  time lost (To Be Subtracted from Net Active Service)

1969  11  16  ending date of AWOL
   - 1969  08  16  beginning date of AWOL
   =    00  03  00
   +                  1  day inclusive
   =    00  03  01  time lost (To Be Subtracted from Net Active Service)

1970  09  18  ending date of AWOL
   - 1969  12  09  beginning date of AWOL
   =    00  09  09
   +                  1  day inclusive
   =    00  09  10  time lost (To Be Subtracted from Net Active Service)

 01  04  26  period of active service
   -  01  02  21  less total time lost
  =  00  02  05  actual active service (Net Active Service This Period)

3.  The Army regulatory guidance for calculating the entry in item 22a(1) is clear in that time lost and non-creditable service will be subtracted.  Item 22a(1) shows his net active service was calculated to show that he had 2 months and 11 days of creditable active service.  However, based on the calculations of his total time lost, he actually had only 2 months and 5 days of total active service.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

5.  Although it appears that an administrative error was made in items 22a(1) and (3) and 22b of his DD Form 214, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board. For this reason, the Board will not take any action to effect the administrative change to correct items 22a(1) and (3) and 22b of his DD Form 214.

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)                                         AR20100029546



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1