IN THE CASE OF:	  

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130004660 


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 12c (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, General Court-Martial Order Number 44 states, "The accused will be credited with 168 days of confinement against the sentence to confinement."  He was under the impression that the board would make the necessary adjustment after receiving a copy of his general court-martial order.

3.  The applicant provides copies of General Court-Martial Order Number 44, dated 30 December 1998, and 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 are not available for review.  Information contained in this Record of Proceedings was obtained from evidence submitted by the applicant and from information concerning his trial obtained from Westlaw.

3.  He enlisted in the Regular Army on 22 January 1982.  He completed training as an infantryman.

4.  On 12 July 1995, the applicant was convicted by a general court-martial of assault consummated by a battery on his son, a child under the age of 16.  His approved sentence was to be discharged with a bad conduct discharge, to be confined for 2 years, and to be reduced to private, E-1.  He was placed in confinement on 12 July 1995.

5.  The applicant was released from confinement and returned to duty effective 10 December 1996. 

6.  On 5 February 1997, the U.S. Court of Criminal Appeals affirmed the findings of guilty but set aside the sentence and authorized a re-hearing on the sentence.

7.  On 14 August 1998, the applicant was sentenced to a bad conduct discharge, confinement for 18 months, and reduction to private, E-1.  The convening authority approved the adjudged sentence and ordered 168 days confinement credit.

8.  On 2 September 1999, during a second appeal (concerning the applicant’s contention he did not receive a speedy trial) the U.S. Court of Criminal Appeals noted that he had completed his confinement in December 1996.

9.  On 19 August 2002, the applicant was discharged with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a general court-martial conviction. Item 12c of his DD Form 214 shows he completed 19 years, 1 month, and 21 days of net active service.  Item 29 (Dates of Time Lost During this Period) shows he had lost time from 12 July 1995 – 9 December 1996.  

10.  Excluding any lost time, the applicant would have completed 20 years, 
6 months, and 28 days of creditable active service:

          2002 08 19
         -1982 01 22
              20  6   27
            +             1 day inclusive
              20  6   28
11.  Based upon a 30-day month, the applicant had 1 year, 4 months, and 
28 days of lost time:

		1996 12 09
          -1995 07 12
                 1  4   27
          +                1 day inclusive
          =     1  4    28

12.  Including his lost time, the applicant completed 19 years and 2 months of creditable active service:

20 6  28
          - 1  4  28
           19 2  00 years of creditable service (not 19 years, 1 month, and 21 days)

13.  The applicant provides a copy of General Court-Martial Order Number 44 approving and ordering the execution of his sentence.  He was sentenced to confinement for a period of 18 months, reduction to the rank/pay grade of private/E-1, and a bad conduct discharge.  The court-martial order further states, "The accused will be credited with any portion of the punishment served from 12 July 1995 to 5 February 1997 under the sentence adjudged at the former trial of this case.  The accused will be credited with 168 days of confinement against the sentence to confinement."

14.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  It states to enter the amount of service during this period in item 12c, computed by subtracting item 12a (Date Entered Active Duty This Period) from item 12b (Separation Date This Period).  Lost time under Title 10, U.S. Code, section 972, and non-creditable time after expiration of the term of service, if any, are deducted.

15.  The Department of Defense Financial Management Regulation, Volume 7A, paragraph 010104A3a, states when there has been a period of lost time that has not been made good, compute the lost time on a 30-day month basis.  (If lost time has been made good, it is calculated on both a day-for-day and a 30-day month basis and the result most favorable to the member is used.)

DISCUSSION AND CONCLUSIONS:

1.  Item 29 of the applicant's DD Form 214 shows his entire period of confinement, 12 July 1995 – 9 December 1996, and item 12c of his DD Form 214 is somewhat calculated to account for that period of lost time.
2.  However, after his re-hearing on his sentencing the convening authority ordered the applicant be given 168 days (or 5 months and 18 days) confinement credit.  Based upon this action, it would be appropriate to amend item 29 of the applicant’s DD Form 214 to show his lost time as 7 July 1995 – 21 June 1996:

1996  12  09  
                  -           5  18
                    1996  6   21

3.  Further, item 12c of his DD Form 214 should then be corrected to show he completed 19 years, 7 months, and 18 days of creditable active service.

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:

a.  amending item 29 of his DD Form 214 to show his lost time as 12 July 1995 – 21 June 1996; and

     b.  amending item 12c of his DD Form 214 to show he completed 19 years,
6 months, and 21 days of 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)                                         AR20130004660



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ABCMR Record of Proceedings (cont)                                         AR20130004660



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