MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 
	BOARD DATE:           30 September 1998                                      
	DOCKET NUMBER:   AC98-10665

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Raymond V. O’Connor, Jr. 		Member	
	Mr. James M. Alward 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his DD Form 214 to show he completed 2 years, 11 months and 13 days of creditable active federal service.

APPLICANT STATES:  His DD Form 214 is incorrect in that it shows he completed only 1 year, 1 month and 18 days of creditable active federal service.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 12 November 1985.  On 30 December 1986, he fell from a third story window and fractured his back.  On 18 December 1987, a Physical Evaluation Board (PEB) found him to be medically unfit, by reason of a broken back with moderate lower extremity paralysis, at a disability rating of   40 percent, pending completion of a line of duty investigation (LOD).  

The LOD investigation was completed on 9 September 1988 and his injury was determined to be Not in Line of Duty - Due to Own Misconduct.  The complete investigation packet is not available.

On 13 September 1988, the PEB findings were revised to recommend separation without entitlement to disability benefits due to a determination his injuries were incurred not in the line of duty and due to his own misconduct.

On 31 October 1988, the applicant was discharged by reason of a disability not in the line of duty.  He had completed 1 year, 1 month and 18 days of creditable active service and had 370 days of lost time (the period from 30 December 1986 to 31 October 1988).

The Department of Defense Military Pay and Allowances Entitlements Manual provides, in pertinent part, that when an absence is caused by the inability to perform duty for more than 1 day because of intemperate use of alcohol or drugs, or disease or injury resulting from misconduct, the period of the absence is not creditable towards computing time in service (lost time).

Army Regulation 635-5 provides instructions for preparing the DD Form 214.  It states that block 12c will be completed by entering all service less time lost.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  A line of duty investigation determined that the applicant’s injury which he incurred on 30 December 1986 was incurred not in the line of duty and through his own misconduct.  Therefore, the period from 30 December 1986 until his discharge on 31 October 1988 was lost time, not creditable active federal service, and therefore not entered in block 12c of his DD Form 214.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director