IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130001785 


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 amendment of his U.S. Army Court of Military Review decision, dated 19 August 1982.

2.  The applicant states:

	a.  the U.S. Army Court of Military Review, Special Court-Martial (SPCM) 16657, which states:  (1) prejudicial error was acknowledged; (2) request for new review of trial was denied in light of the correction of disapproving the punitive discharge (bad conduct discharge) in favor of an honorable discharge; and 
(3) the sentence is corrected to one month confinement and reduction to E-1, needs to be corrected.  

	b.  the correction is necessary because of the lack of organization during this entire review process.  He was never returned to duty after one month of confinement as he was supposed to have been allowed to do.  He served 
16 months in confinement, all at pay rate E-1, even though he was supposed to have been returned to duty after one month of confinement.

	c.  the U.S. Army Court of Military Review, SPCM 16657, states "Although appellant was released from confinement and returned to duty status within a month of trial it, nevertheless, behooves the command to diligently and expeditiously process all records."  This is false.  He never returned to duty before his discharge.  He served 16 months in confinement, due to the error of the U.S. Army.

	d.  he wants the U.S. Army Court of Military Review, SPCM 16657, corrected to reflect that there was no release from confinement nor return to duty within one month of trial.

	e.  he wants recognition of the fact he never received the opportunity to earn back rank and he has not been compensated in any form for the time he was erroneously held in confinement.  He did not have the opportunity to further his career in the military.

3.  The applicant provides:

* DD Form 214 (Certificate of Release of Discharge from Active Duty)
* record of judgments
* orders

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 on 25 October 1978.  He was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).

3.  On 6 April 1981, he was convicted by a SPCM of conspiring to commit larceny and stealing property of the U.S. government.  He was sentenced to a bad conduct discharge, reduction to E-1, and confinement at hard labor for 1 month.  The convening authority approved the sentence on 27 August 1981.

4.  Orders, dated 14 April 1981, show he was reassigned to the U.S. Army Personnel Control Facility (USAPCF), Fort Dix, NJ, with a reporting date of 
16 April 1981.

5.  Orders, dated 30 April 1981, show he was further reassigned to the USAPCF, Fort Bragg, NC, effective 30 April 1981 with a reporting date of 3 May 1981.  The additional instructions read, in part:

	a.  "Service Member (SM) presently at holding area, this station, returned to duty from confinement and reassigned as directed on effective date.  Pending completion of appellate review and execution of bad conduct discharge"; and

	b.  "SM for duty as commanding officer may direct."

6.  His DA Form 2-1 (Personnel Qualification Record) prepared on 24 November 1981 shows in item 35 (Current and Previous Assignments):

* 3 May-28 November 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 29 November 1981 – absent without leave (AWOL)
* 30 November-8 December 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 9 December 1981 – AWOL
* 10 December-23 December 1981 – USAPCF, Fort Bragg, NC – duties as assigned
* 24 December-27 December 1981 – AWOL
* 28 December 1981-11 January 1982 – USAPCF, Fort Bragg, NC – duties as assigned
* 12 January-13 January 1982 – AWOL
* 14 January-21 April 1982 – USAPCF, Fort Bragg, NC – duties as assigned
* 22 April 1982 – attached to the 364th Supply and Service Company – duties as assigned

7.  His record contains several DA Forms 4187 (Personnel Action) which show that between 29 November 1981 and 14 January 1982 his duty status changed from present for duty to AWOL on four separate occasions while assigned to the USAPCF, Fort Bragg, NC.

8.  On 16 July 1982, he requested excess leave while awaiting the appellate review on the execution of his punitive discharge and his request was approved on 27 July 1982.




9.  On 19 August 1982, the U.S. Army Court of Military Review, SPCM 16657, stated that "although appellant was released from confinement and returned to duty status within a month of trial, it nevertheless behooved the command to diligently and expeditiously process all records."  The findings of guilty were affirmed, but due to the Staff Judge Advocate's failure to include significant clemency matters in the post-trial review presented to the convening authority, the court only affirmed so much of the sentence as provided for confinement at hard labor for 1 month and reduction to the rank/pay grade of private/E-1.  

10.  On 24 September 1982, he was honorably released from active duty due to completion of required service.  He was credited with 3 years, 9 months, and 22 days of net active service.  His dates of lost time are listed as:

* 27 August-26 September 1981
* 29 November 1981
* 9 December 1981
* 24 December-27 December 1981
* 12 January-13 January 1984
11.  There is no evidence of record which shows he was held in confinement for 16 months following his SPCM in April 1981.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he never returned to duty after one month of confinement and that he served 16 months in confinement was carefully considered.  However, evidence shows he returned to duty from confinement in April/May 1981 and he was assigned to the USAPCF pending completion of his appellate review.

2.  Since there is no evidence of record and he provides no evidence which shows he was held in confinement for 16 months following his SPCM in April 1981, there is no basis for granting 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 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)                                         AR20130001785





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ABCMR Record of Proceedings (cont)                                         AR20130001785



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