IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110004226 


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 item 29 (Dates of Time Lost During This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his lost time as "2 April 2008 to 28 August 2009" vice "30 March 2006 to 28 August 2009."

2.  The applicant states his DD Form 214 contains errors.  He was serving at Camp Taji, Iraq, in support of Operation Iraqi Freedom (OIF) from November 2005 to November 2006.  Following that assignment, he returned to the 2nd Battalion, 4th Aviation Regiment at Fort Hood, TX, and remained there in an unconfined status and on active duty until 2 April 2008.  He started his confinement on 2 April 2008.  The erroneous entry has caused a substantive debt at the Defense Finance and Accounting Service (DFAS). 

3.  The applicant provides:

* DD Form 214 for the period ending on 28 August 2009
* Memorandum, dated 13 February 2011, from his former Executive Officer (XO)
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 January 2006 through 31 December 2006
* Officer Record Brief (ORB)
* Judgment in Criminal Case
* Character reference letter
* Letter of support
* Sentence monitoring report as of 7 April 2008
* DFAS Account Statements, letters of indebtedness, and other correspondence
* Memorandum for Record (MFR), dated 19 March 2008
* Turn-in Worksheet, Central Issue Facility (CIF)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he was appointed as a warrant officer one on 28 January 2003 and held military occupational specialty 153D (UH-60 Pilot).  

2.  His OER for the rating period 1 January 2005 through 31 December 2005 shows he was assigned to A Company, 2nd Battalion, 4th Aviation Regiment, Camp Taji, Iraq, and performed duties of UH-60 helicopter pilot for 12 consecutive months.

3.  His OER for the rating period 1 January 2006 through 31 December 2006 shows he was assigned to A Company, 2nd Battalion, 4th Aviation Regiment, Fort Hood, TX, as an ALSE (Aviation Life Support Equipment) officer for 12 consecutive months.

4.  On 26 July 2006, he was awarded the Air Medal for meritorious service while assigned as a CH-60 pilot during Operation Iraqi Freedom.  The period covered by the award shows 12 November 2005 to 11 November 2006.

5.  The facts and circumstances of his discharge are not available for review with this case.  However, his records contain:  

	a.  a DD Form 93 (Record of Emergency Data) and a Servicemember's Group Life Insurance (SGLI) Election Certificate signed by the applicant on 8 January 2008.  

	b.  Orders 239-0140, issued by Headquarters III Corps, Fort Hood, TX, on 27 August 2009, ordering his reassignment to the U.S. Army Transition Center for the purpose of outprocessing effective 28 August 2009. 

	c.  a DD Form 214 that shows he was discharged on 28 August 2009 under the provisions of chapter 4 of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of unacceptable conduct with an under other than honorable conditions character of service.  Item 29 shows he had lost time from 30 March 2006 to 28 August 2008.

	d.  a DD Form 215 (Correction to DD Form 214) that shows he is not entitled to separation pay.

6.  On 24 December 2009, DFAS notified him that as a result of his lost time, he was indebted to the U.S. Government in the amount of $220,076.02.  The debt was due to collection of pay and allowances for his civil confinement status from 30 March 2006 through 28 August 2009.  

7.  He submitted:

	a.  A Judgment in a Criminal Case, U.S. District Court, Western District of Texas, dated 4 March 2008, which shows he pled guilty to one count of conspiracy to possess with intent to distribute more than 5 kg of cocaine.  He was sentenced to 54 months of imprisonment.  

	b.  A Sentence Monitoring Computation data as of 7 April 2008 that shows the applicant was confined on 27 July 2007.  He was sentenced on 28 February 2008 and his jail time began on 2 April 2008.

	c.  A memorandum, dated 13 February 2011, from his former commander (now XO) who states that the applicant served under him from March 2007 through November 2007.  Prior to that, the unit had been deployed to Iraq from November 2005 to November 2006.  The applicant was deployed with the unit and served 12 consecutive months in Iraq.  The XO adds that he served as an operations officer from November 2007 to June 2008.  The applicant was incarcerated on 2 April 2008.  To his knowledge, the applicant was not incarcerated between March 2006 and April 2008.

	d.  Character reference letters from other officers who noted the applicant's hard working habits and strong character. 

	e.  An MFR, dated 19 March 2008, authorizing him to clear without orders. 

	f.  A CIF turn-in worksheet, dated 24 March 2008.

8.  The analyst of record made the following contacts in an attempt to confirm the exact dates of lost time:

* contacted the applicant multiple times but he did not have copies of the DA Form 4187 (Personnel Action) that confirmed his duty status
* contacted the official who prepared the DD Form 214 but she did not have the forms
* contacted the unit's higher headquarters; was informed the unit relocated from Fort Hood, TX, to Fort Carson, CO, and is currently deployed
* contacted the transition center; could not locate the separation packet

9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states:

	a.  Item 12a, enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

	b.  Item 12b, the Soldier’s transition date; this date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government.

	c.  Item 12c, the amount of service this period, computed by subtracting item 12a from 12b.  Lost time under Title 10, USC, section 972, is deducted.  

	d.  Item 29 of the DD Form 214 shows time lost and is subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good."  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 (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service.  For enlisted Soldiers, item 29 shows inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his official records show he was discharged for unacceptable conduct due to what appears to be a civil conviction.  His DD Form 214 shows he had lost time from 30 March 2006 through 28 October 2008.  There is no evidence that this lost time was made good.

2.  The dates of his lost time seem to be incorrect. 

	a.  His OER shows he was in Iraq from 1 January 2006 through 31 December 2006 but his records do not show any activity during 2007, 2008, or 2009.  

	b.  A DD Form 93 and SGLI form indicate he was available for duty on           8 January 2008.
	c.  His former commander certified that he was incarcerated on 2 April 2008. 

	d.  the Sentence Monitoring Computation data sheet shows the applicant was confined on 27 July 2007, sentenced on 28 February 2008, and his jail time began on 2 April 2008.

3.  The above evidence is accepted as sufficient on which to base correcting his DD Form 214 to show he had lost time on 27 July 2007 and from 2 April 2008 through 28 August 2009.

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:

* deleting from item 29 of his DD Form 214 the entry "2006030 - 20090828"
* adding to item 29 of his DD Form 214 the entries "20070727 - 20070727" and "20080402 - 20090828"
* adjusting item 12c of his DD Form 214 accordingly
* having DFAS audit his pay records as a result of this correction



      _______ _   _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)                                         AR20110004226



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ABCMR Record of Proceedings (cont)                                         AR20110004226



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