IN THE CASE OF:  	  

		BOARD DATE:  26 May 2015	  

		DOCKET NUMBER:  AR20140016779 


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 his DD Form 214 (Report of Separation from Active Duty) to show he was released from active duty on 23 September 1978, and to show he never sold back his leave.  He further requests award of the Army Good Conduct Medal.  

2.  The applicant states his DD Form 214 shows he was separated from active duty on 22 September 1978; however, this is an incorrect date.  The correct date is 23 September 1978.  

	a.  He was on terminal leave from Vilseck, Germany and his DD Form 214 shows he sold back leave; he did not sell back any leave.  

	b.  His DD Form 214 does not reflect the Army Good Conduct Medal, which he should have been awarded because he put in the required amount of time.  However, his DD Form 214 incorrectly shows his expiration term of service (ETS) date as 22 September 1978 vice 23 September 1978.  This error makes him one day short of the three year period required for award of the Army Good Conduct Medal.  

	c.  Even if his ETS date remains the same, the completed period of service shown on his DD Form 214 does not account for the fact that 1976 was a leap year and he was on active duty; therefore, its calculations are at least a day off.  This extra day brings his time up to three years, and if his DD Form 214 is corrected to reflect his proper ETS date, then his DD Form 214 should show that he completed 3 years and 1 day of net active service.
3.  The applicant provides no additional evidence in support of his request.

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 24 September 1975, held military occupational specialty 95B (Military Police), and attained the rank/grade of specialist four (SP4)/E-4.

3.  His record contains a DA Form 2 (Personnel Qualification Record – Part I) and DA Form 2-1 (Personnel Qualification Record – Part II) that show:

* his ETS dated was listed as 23 September 1978 
* effective 29 August 1978, his status was listed as casual enroute to the continental United States (CONUS) 
* he was credited with overseas service in Germany from 11 March 1977 through on or about 13 September 1978

4.  His record contains a DA Form 31 (Request and Authority for Leave), dated 22 May 1978.  This form shows:

* he had accrued 13.5 days of leave on 22 May 1978
* the remarks section of this form indicated he would have 25.5 days of accrued leave as of 23 September 1978
* he requested 25 days of leave, and he indicated that the type of absence requested was ordinary leave/permanent change of station (PCS) leave 
* he indicated his leave period was from 20 August to 15 September 1978
* he signed out on leave at 0001 hours on 1 September 1978

5.  Orders Number 265-181, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, on 22 September 1978, released him from active duty and assigned him to U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri, effective 22 September 1978.

6.  His DD Form 214 shows he was honorably released from active duty at Fort Dix, NJ, on 22 September 1978, in accordance with Army Regulation 653-200 (Personnel Separations – Enlisted Personnel), paragraph 5-12.  His DD Form 214 shows in:

* item 9c (Authority and Reason), he was assigned the Separation Program Designator (SPD) code "LBM"  
* item 9d (Effective Date), the entry "78  09  22"
* item 18a (Net Active Service this Period), the entry "02  11  29"
* item 22 (Days Accrued Leave Paid), the entry "4 1/2"
* item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), he was not awarded the Army Good Conduct Medal
* item 29 (Signature of Person Being Separated), the entry "separatee not avilable [sic] for signature"

7.  Army Regulation 650-5 (Leaves and Passes) prescribes policies and procedures regarding types of authorized absences.

	a.  Paragraph 3-1 (Leave Accrual) states members are entitled to leave with pay and allowances at the rate of 2.5 calendar days for each month of active duty or active duty for training.

	b.  Paragraph 10-3 (Leave in conjunction with separation (terminal leave)) states members may be granted leave in conjunction with separation, to include retirement, upon request.  Leave in conjunction with separation will not exceed that accrued and the leave that will be accrued between the date of approval and the date of separation.  Leave will not be granted/or approved if it will interfere with timely processing or separation.  

	c.  Members who take leave in conjunction with separation will be processed as follows:

		(1)  Members stationed overseas, who are returning to CONUS or area of residence for separation, may be granted leave enroute.  This leave must not extend beyond the member's separation date.  

		(2)  Members may complete separation processing in a leave status at the designated US Army Separation Transfer Point at any mutually acceptable time.
	d.  Leave authorized in conjunction with separation will be terminated as follows: 

  		(1) at 2400 hours on the day of separation (concurrent with separation); and

  		(2) upon reporting to the designated US Army Separation Transfer Point not earlier than the reporting date specified in the member's orders.  

8.  Army Regulation 635-200, paragraph 5-12 (Oversea returnees), in effect at the time, provided that commanders were authorized to order separation for convenience of the Government of enlisted personnel returned to the United States, a possession of the United States or area of residence in which the enlisted Soldier was ordered to active duty.  Enlisted personnel in the United States or area of residence on temporary duty (TDY) or emergency leave from an overseas organization who, upon completion of leave, were within 60 days of ETS would be discharged or released, as appropriate.  Affected members would be reassigned to a separation transfer point (STP) nearest their home for separation processing.  Separation processing would not be accomplished prior to completion of leave or TDY.  Records and allied papers would be forwarded to such STP.  Affected members would be instructed that upon completion of leave or TDY they would report to the STP to which assigned for separation processing.  This paragraph was not to be construed as authority for early return. It authorized separation for the purpose stated only, to preclude nonproductive reassignments for short periods of time.  

9.  Army Regulation 653-5-1 (Personnel Separations Separation Program Designators), in effect at the time, provided that for separations in accordance with Army Regulation 635-200, paragraph 5-12, separating Soldiers would be assigned the SPD code "LBM" (Short length of time remaining on active duty precludes reassignment).

10.  The year 1976 was a leap year.  A leap year consists of 366 days, as opposed to a common year, which has 365 days.  February 29 is a date that occurs every four years, and is called leap day.  This day is added to the calendar in leap years.

11.  The Department of Defense Financial Management Regulation (DODFMR), Volume 7A, Chapter 1, paragraph 010104 (Computation of Creditable Service), states, in pertinent part, that to calculate dates, list the beginning date of service and then list the ending date.  The following rules apply:

* if either day is the 31st day of the month, change it to 30
* if either day is February 28 in a non-leap year, change it to February       30 for computation purposes
* if either day is February 29, change it to February 30 for computation purposes
* do not change February 28 of a leap year to February 30

Then subtract the beginning day from the ending day.  For each non-continuous period of service, add 1 day to account for inclusive days.  Explanation: Any period of service is at least one day.  It is necessary to add 1 day for inclusive days to avoid this erroneous answer.  Convert to full years, months, and days.  The result is years of service creditable for pay purposes.  If, for example, the member had one day of service on 17 January 2012, then the computation would look like this:

							YR 	MO 	DAY
Ending Day: 				12 		01 		17
Less Beginning Day:    -12 	01 		17
							00 		00 		00
Plus 1 extra Day 	   +00		00		01
							00		00		01

12.  Department of the Army Pamphlet (DA PAM) 600-8 (Management and Administrative Procedures), paragraph 5-12g(2), covers time in service and date of rank computations on the DD Form 214 and states that when computing a period a month will be computed on a 30-day basis.  When computing creditable service, consider each month as consisting of 30 days regardless of the actual number of days in the month, except when the period of active services ends on 28 February of a leap year; do not change the 28 to 30 since the 29th is the last day of the month.  Add one day for inclusive dates after subtractions.  Convert 30 days and 12 months to full months and years after computation.

13.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of 1 or more years of active Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates the applicant had a total of 13.5 days of accrued leave when he submitted his leave form in May 1978 and leave accrues at a rate of 2.5 days per month.  Therefore, he would have accrued an additional 2.5 days of leave for each of the subsequent 4 months:  June, July, August, and September.  This means it was only possible for him to accrue an additional 10 days of leave between May 1978 and September 1978.  As such, the remarks section of his DA Form 31 incorrectly stated he would have 25.5 days of accrued leave as of 23 September 1978.  Though he requested 25 days of leave he would have only had 23 days of accrued leave on 23 September 1978. 

2.  His DA Form 31 shows he was signed out on leave effective 1 September 1978; as such, this was the date his leave would have begun.  However, this form shows his leave was only approved through 13 September 1978.  Therefore, he would have been required to sign in at the designated U.S. Army Separation Transfer Point (Fort Dix, NJ) to end his approved leave no later than 13 September 1978.  He would have been left with 10 days of accrued leave remaining.  

	a.  Once he reported to Fort Dix, NJ and signed in from leave so that his leave did not interfere with the separation process, he would have begun the separation process.  

	b.  Unfortunately, his record does not contain any evidence to show how long he remained at Fort Dix.  However, based on the fact that his DD Form 214 shows he was unavailable for signature, it is presumed he was placed on leave after his processing was concluded and was not at Fort Dix on the day his
DD Form 214 was completed.  

	c. Furthermore, his DD Form 214 shows he was paid for 4.5 days of leave remaining on the books at the time of his separation; therefore, it is further presumed that he was placed back in a leave status on or around 19 September 1978.

	d.  There is no evidence of record and the applicant has not provided any evidence to show he did not have 4.5 days of leave remaining at the time of his release from active duty.  Therefore, there is insufficient evidence to show that the entry in item 22 of his DD Form 214 is incorrect or to justify changing this entry.  

3.  The applicant's separation orders directed he be released from active duty on 
22 September 1978 and his DD Form 214 confirms he was released from active duty on 22 September 1978 in accordance with Army Regulation 635-200, paragraph 5-12 and issued an SPD code of "LBM."  This separation was appropriate because he was an active duty Soldier who was returning from overseas, and, as of the day his leave ended on 13 September 1978, he had less than 60 days until his ETS date of 23 September 1978.  Therefore, he was discharged for the convenience of the Government to preclude a nonproductive reassignment for short period of time on 22 September 1978.  

	a.  There is no evidence of record and the applicant has not provided any evidence to show he served on active duty or was paid for active duty service after 22 September 1978.

	b.  Based on the foregoing there is insufficient evidence to justify correcting his DD Form 214 to show he was released from active duty on 23 September 1978.

4.  The Army's method for computing creditable service considers each month as consisting of 30 days regardless of the actual number of days in the month, except when the period of active services ends on 28 February of a leap year.  Though the applicant served on active duty in 1976, which was a leap year, his active service did not end on 28 February 1976.  Therefore, his creditable military service is calculated considering that each day of the month is 30 days long.  His DD Form 214 correctly shows he completed 2 years, 11 months, and 29 days of net active service based on the calculation below:

							YR 	MO 	DAY
Ending Day: 				78 		09 		22
Less Beginning Day:    -75 	09 		24
							02 		11 		28
Plus 1 extra Day 	   +00		00		01
							02		11		29

5.  Contrary to the applicant's stated beliefs, there is no automatic entitlement to the Army Good Conduct Medal.  Nevertheless, the evidence of record shows he served on active duty from 24 September 1975 to 22 September 1978 and was honorably released from active duty.  His record does not contain any derogatory information that would indicate his commander intended to deny him this award.  Since it appears he met the criteria for award of the Army Good Conduct Medal (1st Award), it would be appropriate to award him the Army Good Conduct Medal (1st Award) for the period 24 September 1975 to 22 September 1978, and correct his DD Form 214 to show this award. 







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
awarding him the Army Good Conduct Medal (1st Award) for the period 
24 September 1975 to 22 September 1978 and adding this award to his DD Form 214.   

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the changing the entries in items 9d, 18a, and 22 of his DD Form 214.



      _______ _   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)                                         AR20140016779





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ABCMR Record of Proceedings (cont)                                         AR20140016779



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