MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           29 April 1999                   
	DOCKET NUMBER:   AR1999022696

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Christopher J. Prosser		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:  In effect, that the entry pertaining to AWOL/Days Lost be removed from item 30 (Remarks) of his DD Form 214 (Report of Transfer or Discharge).  

APPLICANT STATES:  In effect, that this entry should be removed from his
DD Form 214 due to the fact he “beat” the court-martial, that he was never issued the “blue book” and he did not receive his back pay in this matter.  He contends that it is now effecting his retirement.   

COUNSEL CONTENDS:  The American Legion, as counsel for the applicant, supports the applicant’s contentions and requests that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10 U.S.C., section 1552, and set forth in
32 C.F.R., section 581.3.  

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

The applicant was inducted in the Army of the United States on 3 April 1964.  He served as a Hawk missile crewman in Vietnam from 11 September 1965 to
30 March 1966 and was honorably discharged in the pay grade of E-3 on
30 March 1966.  He enlisted in the Regular Army on 2 August 1966 for a period of 3 years.  He served in Vietnam from 5 September 1966 to 5 August 1968.     

During his second assignment in Vietnam he was involved in numerous disciplinary actions.  Between 9 January 1967 and 26 November 1967, nonjudicial punishment was imposed against the applicant on three occasions for being AWOL (2 January 1967 to 3 January 1967), disobeying a lawful command, failure to repair, violating a lawful general regulation and possession of an unauthorized pass.  On 27 February 1967, he was convicted by special
court-martial for sleeping upon his post as a sentinel. 

On 24 October 1968, the applicant was convicted by special-court martial for being AWOL from 24 June 1968 to 16 August 1968 and breaking restriction.  One specification of AWOL (10 December 1967 to 30 March 1968) was dismissed upon the motion of the defense counsel that the government failed to give proper relief and to grant due process of law.  He was sentenced to confinement at hard labor for 2 months and forfeiture of $50.00 pay per month for 2 months.  The convening authority approved the sentence on 20 November 1968.  

The applicant’s records indicate that he was tried by his third special
court-martial for being AWOL during the period 20 December 1968 to 
18 February 1969.  However, due to the failure to bring the applicant to a speedy trial, the charge was dismissed.

On 8 August 1969 the applicant was discharged with a general discharge under the provisions of Army Regulation 635-212, for unsuitability.  He had served
2 years, 3 months, and 1 day of total active service with 390 days lost due to AWOL and confinement.

Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows “2Jan67 to 3Jan67 AWOL”; “10Dec67 to 30Mar68 AWOL”; “24Jun68 to 15Aug68 AWOL”; and “27Jan69 to 17Feb69 AWOL”.  Item 30 (Remarks) of the applicant’s DD Form 214 lists the same inclusive periods of time lost. 

On 27 July 1978, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

On 4 March 1993 the applicant applied to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his general discharge.  On
13 October 1993, the ABCMR denied his request as a result of his failure to file the application within the time prescribed by law.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs 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.C., section 972, and periods of non-inclusive time after ETS will be entered.  Lost time under Title 10 U.S.C., section 972 is not creditable service for pay, retirement, or veteran’s benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between date of entry on active duty and separation date is creditable service.  Time lost after ETS is non-chargeable time under Title 10 U.S.C., section 972, but it must also be reported to make sure it is not counted in computation of total creditable service for benefits.

Title 10 U.S.C., section 972, Members: effect of time lost.  It states, in pertinent part, that an enlisted member of an armed force who (1) deserts; (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; (3) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or (4) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.     

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.  The applicant’s contention that the AWOL period should be removed from his DD Form 214 because he “beat” the court-martial, is without merit.  The Board notes that the evidence of record indicates that the charge for being AWOL from 10 December 1967 to 30 March 1968 was dismissed at court-martial.  However, in accordance with the governing regulation, the Army preserves a record of lost time to explain which service between date of entry on active duty and separation date is creditable service.

2.  The applicant’s contentions that he never received back pay for the AWOL period that was dismissed and that his retirement is being effected, is also without merit.  The Board notes that in accordance with the governing regulation, lost time under Title 10 U.S.C., section 972 is not creditable service for pay, retirement, or veteran’s benefits. 

3.  In accordance with Army Regulation 635-5, the applicant’s inclusive dates of lost time due to AWOL are reflected in item 30 (Remarks) on his DD Form 214.  Therefore, the applicant’s DD Form 214 is correct as currently constituted. 

4.  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.

5.  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

AMC____  ESC____  CJP_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022696	
SUFFIX		
RECON		
DATE BOARDED	19990429	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19690808	
DISCHARGE AUTHORITY	AR 635-212  	
DISCHARGE REASON	UNSUITABILITY	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134	
2.		
3.		
4.		
5.		
6.