RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2007 DOCKET NUMBER: AR20060014029 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Gerard W. Schwartz Acting Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Ms. Yolanda Maldonado Chairperson Ms. LaVerne Douglas Member Mr. Gerald Purcell Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his dates of lost time shown in item 30 (Remarks) on his DD Form 214 (Report of Transfer or Discharge) for the period ending 27 October 1970 be corrected. He also requests that he be reimbursed for E-4 pay that was forfeited during the period 15 December 1968 through 10 March 1969. 2. The applicant states, in effect, that he was wrongly accused of being absent without leave (AWOL) during the period 19 June 1968 to 19 September 1968 which resulted in a special court-martial conviction and reduction from E-4 to E-2 during the period 15 December 1968 to 15 March 1969. He contends that this court-martial sentence was remitted and that his rank (E-4) was subsequently reinstated but he was not paid as an E-4 for the period 15 December 1968 to 15 March 1969. He is requesting reimbursement of the money he forfeited during the period 15 December 1968 to 15 March 1969 because he earned it. He also states he was not AWOL during the periods 11 March 1970 to 22 March 1970 and 11 April 1970 to 14 April 1970, that he was under orders and providing testimony at two trials. 3. The applicant provides a DD Form 214 for the period ending 27 October 1970; a DD Form 214 for the period ending 23 February 1966; service personnel records; award certificates; and a medical record, dated 2 January 2002. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of alleged errors which occurred on 27 October 1970. The application submitted in this case is dated 18 September 2006. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted on 23 February 1965 for a period of 3 years. He trained as an infantry direct fire crewman and was honorably discharged on 23 February 1966 for immediate reenlistment. He reenlisted on 24 February 1966 for a period of 6 years. He attained the rank of E-4 on 16 September 1966. He arrived in Vietnam on 16 January 1968. 4. While in Vietnam, the applicant went AWOL on 19 June 1968 and returned to military control on 19 September 1968. 5. On 13 November 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 19 June 1968 to 19 September 1968. He was sentenced to forfeit $111 pay per month for 6 months and a reduction to E-2. On 15 December 1968, the convening authority approved the sentence. On 10 March 1969, the unexecuted portion of the sentence to forfeiture of $111 pay per month for 6 months and to reduction to E-2 was remitted. Orders show the applicant was appointed to the permanent grade of E-3 effective 14 March 1969. Orders also show the applicant was appointed to the temporary grade of E-4 effective 15 March 1969. 6. The applicant was transferred to the United States on 29 November 1969. 7. On 15 April 1970, nonjudicial punishment was imposed against the applicant for failure to repair and being AWOL from 12 March 1970 to 23 March 1970. His punishment consisted of a forfeiture of pay (suspended), restriction (suspended), and extra duty (suspended). 8. On 15 April 1970, nonjudicial punishment was imposed against the applicant for being AWOL from 11 April 1970 to 15 April 1970. His punishment consisted of an oral reprimand, restriction (suspended), a forfeiture of pay (suspended), and a reduction to E-4. 9. On 2 July 1970, the applicant was convicted by a special court-martial of being AWOL from 28 May 1970 to 11 June 1970. He was sentenced to be confined at hard labor for 31 days and reduction to E-1. On 18 July 1970, the convening authority approved the sentence. 10. The applicant was placed in confinement from 12 June 1970 to 27 July 1970. 11. Headquarters, United States Army Infantry Center, Fort Benning, GA Letter Orders Number 3584, dated 19 August 1970, show that the applicant was placed in a temporary duty status during the period 31 August 1970 to 4 September 1970 for the purpose of providing testimony at Fort George A. Meade, Maryland, in an Article 32 Investigation case. 12. On 27 October 1970, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-212 for unfitness. 13. Item 30 on the applicant’s DD Form 214 shows that he had 170 days of lost time from 19 June 1968 to 19 September 1968, 11 March 1970 to 22 March 1970, 11 April 1970 to 14 April 1970, and 28 May 1970 to 27 July 1970. 14. Paragraph 3-27 of Army Regulation 27-10 (Military Justice) states, in pertinent part, that an unsuspended reduction is executed on imposition and thus cannot be remitted, but may be mitigated or set aside. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions that he was wrongly accused of being AWOL during the period 19 June 1968 to 19 September 1968 and that he was not AWOL during the periods 11 March 1970 to 22 March 1970 and 11 April 1970 to 14 April 1970 because he was under orders providing testimony at two trials were noted. However, there is no evidence of record, and the applicant has provided no evidence, to support these contentions. Records do show the applicant was placed in a temporary duty status during the period 31 August 1970 to 4 September 1970 for the purpose of providing testimony at an Article 32 Investigation case. Therefore, there is insufficient evidence on which to amend his dates of lost time in item 30 on his DD Form 214. 2. The evidence of record does not support the applicant’s contention that his special court-martial sentence was remitted. Headquarters, 11th Infantry Brigade, Americal Division, APO San Francisco Special Court-Martial Order 27, dated 10 March 1969, show that the unexecuted portion of the sentence to forfeiture of $111 pay per month for 6 months and the reduction to E-2 were remitted. Since the governing regulation states that an unsuspended reduction cannot be remitted, it appears these orders were improperly drafted. However, since the convening authority did not set aside the executed portion of the forfeitures or the special court-martial, it appears it was his intent to mitigate the reduction to E-2 as evidenced by the applicant’s immediate promotions to E-3 on 14 March 1969 and to E-4 on 15 March 1969. Therefore, there is no basis for granting the applicant’s request for reimbursement of forfeited pay during the period 15 December 1968 to 10 March 1969. 3. Records show the applicant should have discovered the alleged errors now under consideration on 27 October 1970; therefore, the time for the applicant to file a request for correction of any error expired on 26 October 1973. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ______ ________ ________ GRANT FORMAL HEARING YM____ _LD_____ _GP_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ___Yolanda Maldonado__ CHAIRPERSON INDEX CASE ID AR20060014029 SUFFIX RECON DATE BOARDED 20070515 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 100.0000 2. 128.1400 3. 4. 5. 6.