BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001427 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: 6 July 2017 DOCKET NUMBER: AR20160001427 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: 6 July 2017 DOCKET NUMBER: AR20160001427 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 correction of his separation date from 28 October 1985 to 28 October 1982 and removal of lost time from his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2.  The applicant states the incorrect separation date is due to an administrative error. Additionally, he believes the lost time was caused by his behavioral health diagnosis of bipolar disorder with psychosis and depression. He had no other disciplinary problems while serving on active duty and he received a fully honorable discharge. He believes it is in the interest of justice to consider his application, as his medical conditions led him to be absent without leave (AWOL) for 1 day. 3.  The applicant provides his DD Form 214 and medical record progress notes, dated 7 January 2015. 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 3-year term on 26 January 1982. He was trained in and held military occupational specialty 95B (Military Police (MP)). 3.  On 23 September 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit, the 170th MP Company, Presidio of San Francisco, CA, from 13 to 14 September 1982. 4.  On 24 September 1982, the applicant's immediate commander advised him of his intent to initiate separation action against him under the Expeditious Discharge Program (EDP) under the provisions of paragraph 5-31 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander cited the specific reasons as the applicant's poor attitude, lack of motivation, inability to adapt to military standards, and failure to demonstrate promotion potential. 5.  On 24 September 1982, the applicant acknowledged receipt of the notification of the proposed separation action. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the EDP. 6.  On 15 October 1982, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 5-31, and directed characterization of his service as honorable. On 28 October 1982, the applicant was discharged accordingly. 7.  His DD Form 214 shows he was discharged on 28 October 1982 under the provisions of chapter 5-31 (EDP) with an honorable discharge. His DD Form 214 shows in: * item 12a (Date Entered Active Duty This Period) – 82  01  6 * item 12b (Separation Date This Period) – 85  10  28 * item 12cf (Net Active Service This Period) – 00  09  02 * item 29 (Dates of Time Lost During This Period) – "TIME LOST UNDER 10 USC 972 [TITLE 10, U.S. CODE, SECTION 972] – 1 DAY FROM:  820913-820913" 8.  On 17 January 1983, he was issued a DD Form 215 (Correction to DD Form 214) correcting his date of separation to 28 October 1982. 9.  He provided a medical record progress notes, dated 7 January 2015, showing he received medical treatment for bipolar disorder with psychosis and depression. 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 instructions stated: 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 Title 10, U.S. Code, section 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.  As for the separation date, the applicant was discharged on 28 October 1982. His DD Form 214 erroneously listed this date as 28 October 1985. However, the applicant was issued a DD Form 215 that corrected this date. (The applicant was provided with a copy of this DD Form 215 by separate correspondence.) 2. As for item 29 of his DD Form 214 pertaining to lost time: a.  The evidence of record shows the applicant was reported as AWOL from 12 to 13 September 1982 and received nonjudicial punishment for this offense. b.  By law and regulation, periods of AWOL are considered lost time and this time is not creditable service for pay, retirement, or veterans' benefits. The lost time is a required entry on the DD Form 214, even if the period of lost time was made up. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001427 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001427 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2