BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015408 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015408 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015408 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, removal of lost time from his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he was not absent without leave (AWOL). 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army for a 4-year term on 25 October 1989. He was trained in and held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 3. His available records contain the front page of a DA Form 4126-R (Bar to Reenlistment Certificate) initiated on 28 October 1991 by the Commander, Headquarters and Headquarters Company, 2nd Battalion, 7th Infantry Regiment, Fort Stewart, GA, indicating: * the applicant was counseled on 13 September 1991 for missing movement * the applicant was counseled on 14 September 1991 for falsifying a signature on a dispatch 4. The complete facts and circumstances surrounding his discharge are not available nor are there records showing the dates he departed in an AWOL status or returned to military control. However, his records contain a DD Form 214 showing he was discharged on 26 May 1992 under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), due to "Misconduct – Pattern of Misconduct" with a discharge under other than honorable conditions. His DD Form 214 also shows in: * Item 12a (Date Entered Active Duty This Period) – "89  10  25" * Item 12b (Separation Date This Period) – "92  05  26" * Item 12cf (Net Active Service This Period) – "02  05  28" * Item 29 (Dates of Time Lost During This Period) – "(Under [Title 10, U.S. Code, Section] 972) 910914-912002 [sic]; 920313-920322" 5. In November 1995, due to his previous misconduct he requested a waiver to enlist in the Idaho Army National Guard (IDARNG). The National Guard Bureau approved the waiver. 6. He enlisted in the IDARNG for 6 years on 8 January 1996. He was assigned to the 116th Cavalry Brigade, Boise, ID, and he was awarded MOS 16S (Portable Air Defense System (MANPADS) Crewmember). 7. He was discharged from the ARNG as an "unsatisfactory participant" on 19 October 1998 with an under honorable conditions (general) characterization of service. He was transferred to the U.S. Army Reserve (USAR) to complete his remaining service obligation. 8. On 18 December 2001, he was transferred from the USAR Control Group (Reinforcement) to a troop program unit of the USAR, the 321st Engineer Battalion, Boise, ID. 9. He attended training for MOS 12B (Combat Engineer) on 11 May 2002 at the 164th Regiment but he was released from training on 24 May 2002 for disciplinary reasons. The "Disciplinary Release" packet and the DA Form 1059 (Service School Academic Evaluation Report) indicate he was AWOL at his first scheduled formation. 10. He was ultimately honorably discharged from the USAR on 16 July 2002 upon expiration of his military service obligation. REFERENCES: 1. AR 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service. a. Item 12a – enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued. b. Item 12b – enter separation date this period; this may not be the contractual date if extended for make-up of lost time or Soldier has been held over for the convenience of the Government. c. Item 12c – enter amount of service this period (subtract 12a from 12b). Lost time under 10 USC 972 and non-creditable time after separation date, if any, will be deducted. d. Item 29 – shows time lost under Title 10, U.S. Code, section 972. The regulation requires 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 the law and periods of non-inclusive time after expiration of term of service will be entered. Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service. 2. AR 15-185 (ABCMR), states the ABCMR begins its consideration of each application with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's record is void of the specific facts and circumstances that led to his discharge in 1992. However, his record contains a DD Form 214 showing he was discharged on 28 May 1992 under the provisions of chapter 14 of AR 635-200 for misconduct with an under other than honorable conditions characterization of service. 2. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. By law and regulation, periods of AWOL and/or confinement are considered lost time, which is not creditable service for pay, retirement, or veterans' benefits. Lost time is required to be listed on the DD Form 214. It appears there is a clerical error for there is no date identified as "912002" (i.e., a date in the 20th month of the year) in the calendar year. Unfortunately, the source documents for the lost time entries on the applicant's 1992 DD Form 214 were not preserved, and the available records do not offer enough information to support correction of that entry. 4. The available records do not show whether the applicant's lost time resulted from AWOL, confinement, or both. However, based on the fact that two periods of lost time were entered on the 1992 DD Form 214, it must be presumed that there was, in fact, a basis for those entries. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015408 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015408 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2