IN THE CASE OF:
BOARD DATE: 9 October 2014
DOCKET NUMBER: AR20140004375
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 the removal/deletion of the entry 3 days lost under sec 6(a) App, 2b MCM 1951 from item 38 of his DD Form 214 (Report of Separation from the Armed Forces of the United States).
2. The applicant states that the capital letters MCM stand for Military Court-Martial which means that a mistake was made because he has never been court-martialed. He never received any kind of notice or grievance written or verbal during his entire period of service and was never called before his commander or chastised in any manner. He was never formally disciplined for anything and he was never absent without leave (AWOL). Additionally, the entry regarding the MCM contains the date 1951, but he was not inducted until 1952.
3. The applicant provides no additional documents with his application.
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. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973. It is believed the applicant's records were lost or destroyed in that fire. However, the documents contained in a reconstructed record are sufficient to conduct a fair and impartial review of this case.
3. The applicant was inducted on 23 April 1952. He completed his training as a mechanic and it appears that he served in Korea. He was promoted to the rank of corporal on 19 November 1953.
4. On 31 March 1954, he was honorably released from active duty (REFRAD). He had served 1 year, 11 months, and 5 days of active service. His DD Form 214 shows he had 3 days lost time under section 6(a), Appendix 2b of the MCM [Manual for Courts-Martial] dated 1951.
5. On 20 June 2009, the U.S. Army Human Resources Command denied the applicants request for award of the Army Good Conduct Medal because of the lack of records and the fact that his DD Form 214 indicated he had 3 days of lost time.
6. The Manual for Courts-Martial (MCM) consists of the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedures.
7. The MCM was effective 31 May 1951. Section 6(a), Appendix 2b, stated, Every soldier who in an existing
enlistment deserts
or without proper authority absents himself from his organization
for more than one day, or who is confined for more than one day under sentence, or while awaiting trial
if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall
amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicants claim that he was never AWOL is not in doubt, the applicant has failed to provide any evidence to support his contention.
2. The requirement to make up lost time is not necessarily just due to AWOL but could be due to other reasons, such as the intemperate use of alcohol or injury the result of ones own misconduct. Unfortunately, the passage of 60+ years since his discharge combined with the loss of his records in the 1973 fire at the NPRC makes it difficult at best to determine exactly what happened in his case.
3. In addition, the applicant contends that the entry regarding the MCM contains the date 1951, but he was not inducted until 1952. However, the 1951 entry regarding the MCM refers to the effective date of the MCM and has nothing to do with when he was inducted.
4. Therefore, in the absence of evidence to show otherwise, it must be presumed that the actions taken by the Army at the time were correct and that he did indeed have 3 days of lost time.
5. Accordingly, there appears to be no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X___ ___X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others to know that this action does not diminish the sacrifices he made in service to the United States during the Korean
War and that his service is deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
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