IN THE CASE OF:
BOARD DATE: 4 February 2014
DOCKET NUMBER: AR20130008553
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 receipt of pay and allowances withheld during pre-trial
confinement for a 7-month period.
2. The applicant states his pay was stopped from approximately October 1973 to May 1974. He has only been able to obtain some medical records that show a couple of months of incarceration. Hopefully, other records will show the rest of the time.
3. The applicant provides two pages of medical records.
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 30 August 1972. He completed training, was awarded military occupational specialty 36K (Wireman), and was stationed in Germany.
3. His record shows:
* receipt of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on two occasions
* conviction by summary court-martial of communicating a threat, using provoking words, being absent without leave, and willfully disobeying a noncommissioned officer
* the approved sentence included reduction to pay grade E-1, forfeiture of $200 per month for 1 month, 30 days restriction, and 15 days extra duty
4. On 26 August 1974, the applicant was separated with an honorable characterization of service. He had served 1 year, 11 months, and 24 days of creditable service and had 3 days lost time. He was released early because his short remaining active duty obligation precluded reassignment.
5. There is no documentation in his record that shows he was confined pending trial for an extended period of time and none that any pay was withheld.
6. The medical records submitted by the applicant in support of his request show:
* he was treated at a confinement facility dispensary on 15 and 22 January and 3 February 1974
* his organization was listed as, "Stockade" when he was seen at the emergency room of the 130th General Hospital on 16 February 1974
* these records do not show whether the applicant was a prisoner or a member of the confinement facility staff
7. Army Regulation 15-185 sets forth the policy and guidance for the ABCMR. Paragraph 2-9 states the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence to substantiate the applicant's assertions that pay was withheld while he was in pretrial confinement for 7 months.
2. The Board is required to presume regularity and the applicant has the responsibility to provide convincing evidence to the contrary. Thus far, he has presented only some medical records that show he was assigned or attached to a confinement facility.
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) AR20130008553
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ABCMR Record of Proceedings (cont) AR20130008553
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