IN THE CASE OF:	  

		BOARD DATE:  17 January 2012

		DOCKET NUMBER:  AR20110011714 


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, his records be corrected to remove any reference to time lost due to being absent without leave (AWOL) and that lost time be made good.

2.  The applicant states he was court-martialed in 1976 and he received a bad conduct discharge (BCD), reduction in rank, and forfeiture of pay and allowances.  However, at the commander's request, the BCD was remitted and he served honorably until 27 December 2007.  He contends he was never made aware that his periods of AWOL, even 2 days, negate an entire year of creditable service.  He feels it was a grave injustice not to make an accused aware of the possible punishment if convicted and this injustice has adversely affected his retirement date as a consequence.  In effect, he has been denied his right to a just retirement having served only 19 years and 3 months of creditable service.

3.  Further, his record will demonstrate that after his confinement he was an important and vital asset to our national defense serving in some of the most sensitive positions in the U.S. Army having been detailed to most of our national intelligence agencies and serving in classified positions.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 199 (Physical Evaluation Board Proceedings).



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 3 years on 15 October 1974.  He was honorably released from active duty on 17 February 1978 and transferred to a U.S. Army Reserve (USAR) unit.  He was credited with 2 years, 11 months, and 29 days of active Federal service.

3.  Item 27 (Remarks) of his DD Form 214 for the period ending 17 February 1978 lists 127 days of lost time under Title 10, U.S. Code, section 972, as follows:

* 2 February 1976-4 February 1976 [AWOL]
* 1 March 1976-19 April 1976 [AWOL]
* 9 August 1976-21 October 1976 [imprisonment]

4.  On 27 December 2007, he was honorably discharged from the USAR by reason of disability with severance pay.

5.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 16 August 2011, shows he has a total of 19 years, 3 months, and 11 days of qualifying years for retirement.  This document also lists the same periods of lost time as shown on his DD Form 214 for the period ending 17 February 1978.  He did not receive qualifying retirement points during his 127 days of lost time, but he did receive creditable points within that same year.

6.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It directs that the dates of lost time during the current enlistment will be entered on the DD Form 214.  Lost time under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however, the Army preserves a record of lost time to explain which service between the date of entry on active duty and the separation date is creditable service for benefits.

7.  Title 10, U.S. Code, section 972, states that enlisted Soldiers are required to make up for lost time.  A Soldier who is returned to military duty after a period of being absent from his unit for more than 1 day without proper authority or who deserts is required to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, his records be corrected to remove any reference to lost time due to being AWOL and that the lost time be made good for retirement purposes.

2.  The evidence shows he had 127 days of lost time due to AWOL and imprisonment.  His contention that he only recently came to understand that his lost time would not be creditable for retirement purposes is not reasonable because his Chronological Statement of Retirement Points clearly shows he did not receive credit toward retirement for his lost time.  Further, it is doubtful that during his military career he never reviewed a copy of this document prior to his separation.

3.  His service after confinement is noteworthy; however, there is no evidence in his records and he did not provide any evidence that his lost time was in error.  Therefore, there is insufficient evidence to grant 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 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)                                         AR20110011714



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ABCMR Record of Proceedings (cont)                                         AR20110011714



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