IN THE CASE OF:
BOARD DATE: 24 April 2014
DOCKET NUMBER: AR20130014156
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 the dates of lost time on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states the dates of lost time on his DD Form 214 are incorrect and are exaggerated in what appears to be an error. He admits that he made a mistake when he reacted to the situation by going absent without leave (AWOL); however, he was AWOL for 29 days, not 5 months as alleged. The unit morning reports will show that he was accounted for during the period in question and he did participate in all recorded unit activities.
3. The applicant provides 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 enlisted in the Regular Army, on 8 August 2006, in the rank of private/E-1, and he held military occupational specialty (MOS) 92Y (Unit Supply Specialist). He was awarded or authorized the National Defense Service Medal and Army Service Ribbon. He was assigned to the 2nd Battalion, 1st Infantry, Fort Lewis, WA.
3. His records contain three DA Forms 4187 (Personnel Action) that show:
* on 1 December 2007, he departed his unit in an AWOL status
* on 31 December 2007, he was dropped from the Army rolls as a deserter
* on 1 May 2008, he returned to military control
4. On 7 June 2008, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 1 December 2007 to 1 May 2008.
5. On 10 July 2008, the applicants immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - commission of a serious offense (Desertion). He recommended the issuance of an under honorable conditions (general) discharge.
6. On 10 July 2008, the separation authority approved the applicants discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense with the issuance of an under honorable conditions (general) characterization of service.
7. On 25 July 2008, the applicant was accordingly discharged. His DD Form 214 shows he completed 1 year, 7 months, and 12 days of net active service and he had lost time from 1 December 2007 to 30 April 2008 recorded in item 29 (Dates of Time Lost During This Period).
8. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service. Item 29 shows time lost under Title 10, U.S. Code, section 972. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214. For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration of term of service (ETS) will be entered. Time lost 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 it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant committed a serious offense in that he departed his unit in an AWOL status from 1 December 2007 to 1 May 2008 as shown on the DA Forms 4187 filed in his records, the Article 15 he accepted, and his separation packet. As such, his chain of command initiated separation action against him.
2. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. Not only did the applicant fail to show he was AWOL for only 29 days as he contends and not only is there no evidence that he made up this lost time, even if he did so, the requirement to list the lost time on the DD Form 214 remains a valid requirement. In view of the foregoing, there is no basis for changing his dates of lost time.
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) AR20130014156
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