IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120008483 


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 (Certificate of Release or Discharge from Active Duty) to show he completed 2 years and 5 months of net active service.

2.  The applicant states his DD Form 214 should reflect 2 years and 5 months of service and not 1 year and 5 months.  He submitted a request to the New York State Retirement System to buy back his service time.  He was advised that he was only credited with 1 year and 5 months.  There is a possible error according to the New York State Retirement System.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 13 April 1971 for 3 years.  He completed basic and advanced individual training and was assigned primary military occupational specialty 71B (Clerk Typist).  He was promoted to pay grade E-3 on 14 March 1972.

3.  He received nonjudicial punishment twice under Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty and for being derelict in the performance of his duties.

4.  On 15 March 1973, he was convicted by a special court-martial of various specifications.  The court sentenced him to confinement at hard labor for 29 days, a forfeiture of pay for 1 month, and a reduction to the lowest enlisted grade.  The convening authority approved the sentence on 18 April 1973.

5.  On 15 August 1973, the applicant's unit commander initiated a bar to reenlistment against the applicant.  The unit commander stated the applicant received a special court-martial and was fined 1 month’s pay, reduced to pay grade E-1, and confined for 29 days in the stockade.  The exact dates of confinement are unknown.

6.  On 21 August 1973, the applicant's unit commander notified the applicant of his possible elimination from the service for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-5b(3).  After consulting with counsel, he acknowledged the proposed separation action.  He waived his rights and elected not to submit a statement in his own behalf.  The appropriate authority approved the applicant's discharge and directed issuance of a General Discharge Certificate.

7.  He was discharged from active duty in pay grade E-1 on 27 August 1974 under the provisions of Army Regulation 635-200, paragraph 13-5b(3).  He was issued a General Discharge Certificate.  His DD Form 214 (Report of Separation from Active Duty) shows in:

* item 18a (Net Active Service This Period) – "1  5  24"
* item 18b (Prior Active Service) – "0  0  0"
* item 18c (Total Active Service) – "1  5  24"
* item 21 (Time Lost) – "None"

8.  His DA Form 20 (Enlisted Qualification Record) does not reflect the exact dates of confinement in item 38 (Record of Assignments) or item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date of Expiration of Term of Service).

9.  In 1977, his discharge was upgraded to an honorable discharge as a result of the order of the U.S. District Court for the District of Columbia in Giles vs. Secretary of the Army (Civil Action).  Accordingly, his original DD Form 214 was voided and he was reissued a new DD Form 214 reflecting his upgraded character of service and the following entries:

* item 12a (Date Entered Active Duty This Period) – "71  04  13"
* item 12b (Separation Date This Period) – "73  10  06"
* item 12c (Net Active Service This Period) – "01  05  24"
* item 29 (Dates of Time Lost During This Period) – "None"

10.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  The DD Form 214 will be prepared for all personnel at the time of retirement, discharge, or release from active duty.

	a.  The version of the regulation in effect at the time of his separation stated the dates of entry, separation, and net service are entered in item 18 of the DD Form 214.  Additionally, any lost time (not made good) is entered in item 21.

	b.  The version of the regulation in effect at the time his DD Form 214 was reissued states the dates the Soldier entered and separated from active duty will be entered in items 12a and 12b, respectively.  Item 12c would contain the net active service for the period covered by the DD Form 214.  All service would be less time lost under Title 10, U.S. Code, section 972.  Item 29 would list the amount of time lost (non-pay days).

11.  Title 10, U.S. Code, section 972, specifies that all enlisted members of an armed force who are absent from their organization, station, or duty for more than 1 day without proper authority, as determined by competent authority, are required to make up lost time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DD Form 214 he was issued on 6 October 1973 should reflect he served on active duty for a period of 2 years and 5 months has been noted and found to have partial merit.

2.  The evidence of record shows the applicant enlisted in the Regular Army for 3 years and entered on active duty on 13 April 1971.  His was convicted by a special court-martial on 15 March 1973 and sentenced to 29 days of confinement which is lost time.  The exact dates of his confinement are unknown; however, it is reasonable to presume he was confined immediately after his conviction from 15 March 1973 through 13 April 1973.

3.  Discharge action was subsequently initiated against him and he was discharged accordingly on 6 October 1973 under the provisions of Army Regulation 635-200, chapter 13.  He was issued a DD Form 214 crediting him with completing 1 year, 5 months, and 24 days of net active service and no lost time.

4.  His discharge was upgraded to fully honorable in 1977 as a result of a court action.  He was issued an amended DD Form 214 which credited him with completion of 1 year, 5 months, and 24 days of net active service and omitted lost time.

5.  A time calculation confirms the period 13 April 1971 through 6 October 1973 equals 2 years, 5 months, and 24 days.  After 29 days of lost time is subtracted from his period of active service, it appears he completed 2 years, 4 months, and 24 days of active service.  Therefore, he is entitled to correction of item 18c of his DD Form 214 reissued in 1977 to show a credit of 2 years, 4 months, and 25 days of total active service.

6.  Regulatory guidance specifies that lost time will be entered in item 29.  Item 29 of his amended DD Form 214 contains the entry, "None."  It is not the Board's practice to change a record when the end result will cause an applicant to be worse off than when he or she began the appeal process.  Therefore, that portion of the applicant's DD Form 214 will not be changed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all the Department of the Army records of the individual concerned be corrected by deleting the entry "01  05  24" from item 18c of the applicant's DD Form 214 reissued in 1977 and replacing it with the entry "02  04  25."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting item 18c of his reissued DD Form 214 by crediting him with completing 2 years and 5 months of net active service.



      _______ _   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)                                         AR20120008483



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ABCMR Record of Proceedings (cont)                                         AR20120008483



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