IN THE CASE OF:  	  

		BOARD DATE:  7 October 2014  	  

		DOCKET NUMBER:  AR20140003099 


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, effect, upgrade of his undesirable discharge (UD).

2.  The applicant states his interest is if he was discharged in May 1976, he would like to know where his payments from February 1976 to May 1976 are.  He was in prison during that time.  He is applying for a Department of Veterans Affairs card and whatever benefits he is entitled to.  He does not have any evidence to submit in support of his application, that's why he is requesting a copy of his DD Form 214.

3.  The applicant provides no additional evidence.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he enlisted in the Regular Army on 6 February 1974.  He did not complete basic and advanced individual training for award of a military occupational specialty.  

3.  He was reported absent without leave (AWOL) on 11 March 1974 and dropped from the rolls of his organization on 9 April 1974.  

4.  On 23 October 1974, he was apprehended by civil authorities, confined, convicted, and sentenced to 12 years in jail.  

5.  On 14 March 1975, action was taken to assign him to the U.S. Army Personnel Control Facility and initiation of discharge action under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for his civil conviction.

6.  On 31 March 1975, the applicant was advised in writing of being recommended for elimination from the service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) due to his conviction by civil authorities on the charge of robbery.  He was advised of his rights.

7.  On 16 April 1975, he waived his rights and elected to submit a statement in his own behalf.  In his statement, dated 16 April 1975, the applicant stated, in effect, he really wanted the Army to accept him back and help him get out of that trouble.

8.  On 2 September 1975, the Circuit Court of the City of Portsmouth, VA, advised the U.S. Army Personnel Control Facility that the applicant was convicted of escape from jail on 12 May 1975 and sentenced to 1 year in the State Penitentiary.

9.  On 30 October 1975, the applicant was notified of a board of officers being called to determine if he should be eliminated from the service and his rights.

10.  On 29 April 1976, a board of officers convened and recommended the applicant be discharged because of a civil conviction with issuance of an UD Certificate.

11.  In April 1976, the separation authority approved his discharge and directed his reduction to pay grade E-1 and the issuance of a UD Certificate.

12.  He was accordingly discharged in pay grade E-1 on 27 May 1976.  His character of service was under conditions other than honorable.  He was credited with completing 1 month and 4 days of net active service.  His DD Form 214 lists in:

* Item 21 (Time Lost) – 731 Days
* Item 27 (Remarks) - 697 days of time lost under Title 10, U.S. Code (USC), section 972 and 112 days of time lost subsequent to normal expiration of term of service (ETS) from 6 February 1976 through 27 May 1976

13.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code (USC) and Subsequent to Normal Date of Expiration of Term of Service) of his DA Form 20 (Enlisted Qualification Record) shows the following:

* AWOL – 11 March 1974 to 22 October 1974 – 226 days
* Confinement – 23 October 1974 to 8 September 1975 and 9 September 1975 to 27 May 1976, total of 583 days

14.  Army Regulation 635-206, in effect at the time, stated that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted a UD was considered appropriate.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The regulation required the time lost during the current enlistment would be entered Items 21 and 27 of the DD Form 214.  The regulation stated:
   a.  Item 21 would list the inclusions date of non-pay periods/time lost during the preceding two years and was required by other Federal agencies.

   b.  Item 27 would list the total number of days lost under Title 10, USC, section 972, as well as time lost subsequent to normal ETS; that entry covered the entire period of service covered by the DD Form 214 and indicated on the DA Form 20; lost time under Title 10, USC, section 972, is not creditable service for pay, retirement, or veteran's 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.

17.  Title 10, USC, section 972, states (a) Enlisted Members Required To Make Up Time Lost. - An enlisted member of an armed force who - (1) deserts; (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; (3) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or (4) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reported AWOL and subsequently dropped from the rolls of his organization.  On 23 October 1974, he was apprehended by civil authorities and confined, convicted of robbery, and sentenced to 12 years in jail.  He was notified in writing of the proposed separation action and advised of his rights.  He did not return to his organization and he was discharged accordingly on 27 May 1976.  

2.  It is apparent that his chain of command ensured that the proper documents were prepared and signed by the proper authorities to ensure that he was discharged according to regulatory authority.  The evidence shows his misconduct diminished the quality of his service between March 1974 and May 1976 below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.
4.  There is no evidence of record and he provided none showing he made up some of that lost time prior to his discharge.  He was not in a pay status by reason of his AWOL and confinement.  As a result, he was not entitled to pay during his periods of time lost.  

5.  In accordance with regulatory guidance he was issued a DD Form 214 showing he had 697 days of time lost under Title 10, USC, section 972 and 112 days of time lost from 6 February 1976 through 27 May 1976.  By law, time lost is not creditable service for pay, retirement, or veteran's benefits.  

6.  He will be provided a copy of his DD Form 214 with this Record of Proceedings.

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)                                         AR20140003099





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ABCMR Record of Proceedings (cont)                                         AR20140003099



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