PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 September 2002                 
	DOCKET NUMBER:   AR2002076317

	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. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his rank be restored and that his records be corrected to show the period 30 September - 11 October 1966 was not lost time.

3.  The applicant states he was reduced by summary court-martial on 12 October 1966 but the conviction was later dismissed.  He just recently received copies of all his military records.

4.  The applicant’s military records show that he enlisted in the Regular Army on 19 March 1959.  He was honorably discharged on 18 July 1961 for the purpose of immediately reenlisting on 19 July 1961.

5.  The applicant was promoted to Sergeant, E-5 on 8 July 1966.  He was reduced to Corporal, E-4 on 15 August 1966.

6.  On 30 September 1966, the applicant was placed in pre-trial confinement.  He was released on 12 October 1966.  On 12 October 1966, he was convicted by a summary court-martial of being disrespectful in language towards his superior noncommissioned officer and of disobeying a lawful order.  He was sentenced to be reduced to Private First Class, E-3.  

7.  The applicant was promoted to Specialist Four, E-4 on 1 February 1967.  He was discharged on 23 January 1968 upon his expiration term of service.  Items 26a and 30 of his Report of Transfer or Discharge, DD Form 214, show he had lost time from 30 September through 11 October 1966.  Item 22 shows he completed 6 years and 1 day of creditable service for that period and a total of    8 years and 4 months of creditable active service.  Items 5a, 5b, and 6 show his rank, pay grade, and date of rank as Specialist Four, E-4, 1 February 1967.

8.  Summary Court-Martial Order Number 4, Headquarters, Department of the Army dated 29 July 1969 set aside the findings and sentence of the applicant's 12 October 1966 summary court-martial, dismissed the charge, and ordered all rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence to be restored.

9.  The Department of Defense Financial Management Regulation (DODFMR), Table 1-1, Absence from Duty in Enlisted Status, states that a period spent in confinement is creditable when the member is acquitted or the sentence is set aside or disapproved.

10.  There is no evidence to show the applicant ever applied to the Board for the relief requested.

CONCLUSIONS:

1.  The applicant was lawfully placed in pre-trial confinement on 30 September 1966 until his release on 12 October 1966 and lawfully reduced to Private First Class, E-3 upon his conviction by summary court-martial on 12 October 1966.  He was then later promoted to Specialist Four, E-4 on 1 February 1967 and discharged upon his expiration term of service on 23 January 1968.

2.  More than one year after his discharge the applicant's conviction was set aside, the charges were dismissed, and all rights and privileges were to be restored to him.  His grade of E-4 should have been restored effective 15 August 1966 and, in accordance with the DODFMR, his lost time due to pre-trial confinement should have been made good.  However, as he was already out of the Army no action could have been taken.  There is no evidence to show he ever previously applied to the Board requesting this relief.  Although over 30 years have passed since his conviction was set aside, it would be equitable to now grant the relief requested.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by restoring the applicant's rank of Corporal, E-4 with a date of rank of 15 August 1966 and paying him all pay and allowances due from 12 October 1966 until 1 February 1967, when he was promoted to Specialist Four, E-4.

2.  That the applicant's lost time from 30 September - 11 October 1966 be determined to be creditable for pay and service and that he be paid all due pay and allowances as a result of this correction.

3.  That the applicant's DD Form 214 for the period ending 23 January 1968    and all other records be amended to delete all references to lost time from        30 September - 11 October 1966 and his service for that period and his total service be adjusted accordingly.

4.  That the applicant's DD Form 214 for the period ending 23 January 1968 be amended to show his rank and date of rank as Corporal, 15 August 1966.

BOARD VOTE:  

__JHL__  __MMD__  ___REB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn H. Langston   _
		        CHAIRPERSON

INDEX

CASE ID	AR2002076317	
SUFFIX		
RECON		
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	FULL RELIEF	
REVIEW AUTHORITY		
ISSUES         1.	123.08	
2.	129.00	
3.	128.00	
4.		
5.		
6.