IN THE CASE OF:	   

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018673 


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, in effect, correction of his records to show he had
9 months versus 13 months of lost time due to being in confinement.  

2.  The applicant states he received 9 months of confinement due a court-martial conviction and he was confined at the Naval Brig, Charleston, SC.  His Naval confinement records states he was confined for 13 months.  

3.  The applicant submitted his request to the Board for Correction of Naval Records and that agency forwarded his application to this Board.  

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Department of Justice, Federal Bureau of Investigation (FBI), Identification Record

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 January 1994.  He held military occupational specialty 31P (Microwave Systems Operator/Maintainer). 

3.  On 11 January 1996, he was arraigned and tried at a general court-martial at Headquarters, 21st Theater Army Area Command, Germany, for violating the Uniform Code of Military Justice as follows: 

* Charge I, one specification of conspiring to commit larceny
* Charge II, one specification of larceny of personal property
* Charge II, one specification of burglary 
* Charge IV, two specifications of wrongfully soliciting (Charge and specifications were dismissed by the judge prior to finding)

4.  Consistent with his pleas to the charges and specifications, the court found him guilty of conspiracy, larceny, and burglary.  The court sentenced him to a bad conduct discharge, confinement for 13 months, a forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  

5.  On 11 January 1996, he was confined at Coleman Barracks, Mannheim, Germany, and he was transferred to Charleston Naval Brig for further confinement on 25 March 1996.  

6.  On 14 May 1996, the convening authority only approved so much of the sentence that provided for confinement for 9 months, a forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and a bad conduct discharge; except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 22 August 1996, following his release from confinement, the applicant was placed on excess leave, pending appellate review of his sentence. 

8.  On 27 September 1996, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 



9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 44, dated 7 March 1997, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  The applicant was discharged on 23 April 1997.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge.  This form further shows he completed 2 years, 7 months, and 16 days of active service and he had lost time from 11 January to 21 August 1996, recorded in item 29 (Dates of Time Lost During This Period). 

11.  The applicant's FBI Identification Record shows he was convicted for conspiracy, larceny, and burglary and that he was confined for 9 months.

12.  Army Regulation 635-5 (Separation Documents) established 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 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 was convicted by a general court-martial for conspiracy, larceny, and burglary.  The court sentenced him to confinement for 13 months (and other punishment), but the convening authority approved only 9 months of confinement.  The applicant was confined from 
11 January to 21 August 1996, a period of 7 months and 11 days.    

2.  By law and regulation, periods of confinement 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.  The applicant's military records do not show that he was confined for 13 months.  His confinement orders, excess leave form, court-martial orders, and DD Form 214 show he was confined for 7 months and 11 days.  There is no evidence that he made up this lost time but, 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 granting him the requested relief. 

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)                                         AR20140018673



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ABCMR Record of Proceedings (cont)                                         AR20140018673



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