MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 March 2001
	DOCKET NUMBER:   AR2000047741

	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. Carl W. S. Chun		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Harry B. Oberg		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:  That his time served at the Disciplinary Barracks, New Cumberland, Pennsylvania, be recognized as time spent in the Army.

APPLICANT STATES:  That his discharge document does not reflect the eight months he spent in confinement.  In support of his application he provides a statement from the Office of the Judge Advocate General. And a copy of his general court-martial orders.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records.

The applicant enlisted in the Army on 5 January 1948 and was honorably discharged by reason of minority on 18 April 1948.  He again enlisted in the Army on 26 July 1948 for 6 years.

On 23 March 1951 the applicant was convicted by a general court-martial of larceny of government property.  The sentence provided for a dishonorable discharge, total forfeitures of pay and allowances, and confinement at hard labor for one year. The sentence was approved on 16 April 1951.

The applicant was dishonorably discharged from the Army on 16 April 1951 and confined at hard labor at the Disciplinary Barracks, New Cumberland, Pennsylvania.  He was paroled after 8 months.

On 29 June 1977, this Board corrected the applicant’s records to show that he was discharged with a Certificate of General Discharge from the Army of the United States on 16 April 1951, and issued him the appropriate certificate.

The applicant was issued a Report of Separation from Active Duty (DD Form 214) showing that he entered the Army on 26 July 1948, served for 2 years,
6 months and 23 days, and was discharged under honorable conditions on 
16 April 1951.  The remarks block shows that he had 3 days lost time under Articles of War 107 for being absent without leave.

On 1 October 1998 the Chief, Operations Branch, Office of the Judge Advocate General stated in a letter to the applicant that: “While in confinement as a result of court-martial conviction you were subject to military jurisdiction under Article of War 2(f), and Uniform Code of Military Justice Article 2(7).  Subject to military jurisdiction means that although you may have been issued a discharge while in prison, as a prisoner you could have been prosecuted by trial by court-martial for new misconduct.  It is my understanding that a soldier in confinement as a result of court-martial conviction remains a soldier until issued a discharge.”

Army Regulation 635-5 prescribes policies and procedures regarding separation documents.  It provides, in pertinent part, that Item 18 (Record of Service), DD Form 214 will show all service less time lost under Title 10, United States Code 972 and time lost subsequent to expiration of term of service.

Title 10, United States Code 972 provides that an enlisted member of an armed force who is confined for more than one day under a sentence that has become final 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.  Item 18, of the DD Form 214, is a record of creditable service and does not include time lost due to AWOL and/or confinement.

2.  The time spent in confinement, as well as AWOL time, is not creditable towards an individual’s armed forces active service.  If a service member returns to an active duty status after such a period of absence, he is liable for, and must make up this lost time prior to separation.

3.  The statement, from the Office of the Judge Advocate General, that an individual is considered a soldier and is subject to military jurisdiction while incarcerated in a military facility is correct as far as it goes.  However, the statement should have also pointed out that this is lost time and is not considered creditable.  Therefore, such time is not entered in the Record of Service on an individual’s separation document.

4.  The Board notes that the applicant was discharged from the Army on the day of his incarceration, rather than at his release from confinement, which is the more frequently used procedure.  While the applicant was under military control during his incarceration, he was not a member of the Army.

5.  Therefore, the applicant’s contention that he should be credited on his DD Form 214 for the time he spent in confinement is without merit.

6.  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

___SK___  __EWL__  __HBO___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047741	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010306	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	123.06	
2.		
3.		
4.		
5.		
6.