IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140013892 


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 29 (Dates of Time Lost During This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was tried by special court-martial in February 2011.  He was confined for a period of 47 days in the brig at Norfolk and his enlistment obligation was extended from 17 January 2011 until 2 April 2011.

   a.  On 31 March 2011 (Thursday), he was released from confinement to return to Headquarters Command, Fort Monmouth, NJ, his unit of attachment during the court-martial process.

   b.  He arrived at Fort Monmouth at the end of the day to out-process.  This was just prior to a 4-day weekend for installation personnel.  Two civilian women prepared his out-processing paperwork and he was rushed through the process. His Common Access Card (CAC) was not reissued because he had only one day remaining on his enlistment obligation.  He asked if his out-processing would affect his ability to reenlist in the U.S. Army Reserve (USAR) and he was told "no" at least three times.  He was also told that he could reenlist after the 4-day weekend.  However, he was not told that the entry in item 29 of his DD Form 214 would preclude him from reentering the USAR after a break in military service.

   c.  He states there were no recruiting stations open in the Fort Monmouth area and he was not properly counseled by a military recruiter or retention noncommissioned officer.
   d.  He has been trying to reenter the U.S. Army since 2011.  Had he been given accurate information and guidance at the time of his discharge, he would not have been precluded from remaining in the USAR.

3.  The applicant provides a copy of his 2 April 2011 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 USAR on 17 January 2002 for a period of 
8 years.  Upon completion of training he was awarded military occupational specialty 31B (Military Police (MP)).

3.  Headquarters, U.S. Army Human Resources Command (HRC), St. Louis, MO, Orders A-10-027536, dated 1 October 2010, shows the applicant was ordered to active duty (OAD) on 1 October 2010, with a period of active duty (PAD) of 179 days and an end date (ED) of 28 March 2011, for the purpose of Uniform Code of Military Justice (UCMJ) processing.  He was assigned to Headquarters, U.S. Army Communications–Electronic Command, Fort Monmouth, NJ.  The orders were amended, in pertinent part, as follows:

* on 14 October 2010 by HRC Orders A-10-027536A01, to change the PAD to 180 days and the ED to 2 April 2011
* on an unknown date by HRC Orders A-10-027536A02, to change the PAD to 484 days and the ED to 31 January 2012
* on 5 April 2011 by HRC Orders A-10-027536A03, to change the PAD to 180 days and the ED to 2 April 2011

4.  Headquarters, U.S. Army Communications–Electronic Command, Aberdeen Proving Grounds, MD, Special Court-Martial Order Number 1, dated 30 March 2011, shows the applicant pled guilty and was found guilty of all charges and specifications.
   a.  On 10 February 2011, the applicant was sentenced to be reduced to the grade of private (E-1), to be confined for 10 months, and to pay the United States a fine of $10,000.00.

   b.  On 30 March 2011, the special court-martial convening authority approved only so much of the sentence that provided for reduction to the grade of private (E-1), confinement for 60 days, and to pay the United States a fine of $2,760.00, and affirmed that the applicant's sentence to confinement had been served.

5.  A DD Form 214 shows the applicant entered active duty this period on
1 October 2010 and he was honorably discharged on 2 April 2011 based on completion of required active service.  He had completed 6 months and 2 days of net active service this period.  It also shows in –

* item 8 –

* block a (Last Duty Assignment and Major Command):  U.S. Army Headquarters, Communications–Electronic Command
* block b (Station Where Separated):  Fort Monmouth, NJ  07703-5012

* item 29, the entry "Not Chargeable Under Title 10, U.S. Code, Section 972 [10 USC 972]:  10 February 2011 through 30 March 2011"
* item 21 –

* block a (Member Signature), the entry "Unable To E-Sign"
* block b (Date):  is blank (no entry)

* item 22 –

* block a (Official Authorized to Sign), the entry "E-Signed by K____, M____, GS07, HRC"
* block b (Date):  "20110401 [1 April 2011]"

6.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Enlisted/Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

   b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for item 29, verify that time lost as indicated by the Defense Finance and Accounting Service has been subtracted from "Net Active Service This Period" (block 12c) if lost time was not "made good."  If the expiration term of service (ETS) was adjusted as a result of lost time the Soldier served until ETS, the lost time was "made good."  Lost time under 10 USC 972 is not creditable service for pay, retirement, or veterans' benefits.  However, the Army preserves a record (even after time is made up) to explain which service between "Date Entered Active Duty This Period" (block 12a) and "Separation Date This Period" (block 12b) is creditable service.  Time lost after ETS is nonchargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits.  For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of nonchargeable time after ETS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the entry in item 29 of his DD Form 214 should be deleted and he should be reinstated in the USAR without a break in military service because his enlistment obligation was extended from 17 January 2011 until 2 April 2011; he arrived at Fort Monmouth to out-process on 31 March 2011, but he was unable to reenlist without a break in military service due to the fact that installation support personnel were on a 4-day weekend; and the time lost entry precludes him from reentering military service.

2.  Records show the applicant was OAD on 1 October 2010 for processing under the UCMJ and he had an ED of 2 April 2011.  He was convicted by special court-martial and sentenced to, in pertinent part, confinement for 60 days.  On 
30 March 2011, the Special Court-Martial Convening Authority affirmed the applicant's sentence to confinement had been served.  Accordingly, he was released from confinement for the purpose of separation processing.

3.  The applicant's DD Form 214 shows that he was credited with 6 months and 
2 days of net active service during the period 1 October 2010 through 2 April 2011 and he had time lost from 10 February 2011 through 30 March 2011 during the period of service under review.

4.  The evidence of record shows the applicant reported to Fort Monmouth for out-processing on 31 March 2011 (Thursday) and his DD Form 214 was digitally signed by the authorized official on 1 April 2011 (Friday).
   a.  The fact that his DD Form 214 was authenticated on 1 April 2011 (Friday), refutes the applicant's contention that installation support personnel were not available due to a 4-day weekend.

   b.  In addition, there is no evidence of record that shows the applicant initiated a request for extension or reenlistment in the USAR on either 31 March or 1 April 2011 when installation support personnel were available and he had the opportunity to do so.

   c.  There is no evidence that the item 29 entry on his DD Form 214 is preventing him from reenlisting.

5.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for correcting the applicant's 2 April 2011 DD Form 214 or reinstating him in the USAR effective 3 April 2011.

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)                                         AR20140013892



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ABCMR Record of Proceedings (cont)                                         AR20140013892



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