ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:	7 May 2019 DOCKET NUMBER: AR20160018442

APPLICANT REQUESTS: Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), to show only 127 days of lost time, versus the 1759 days of lost time currently shown.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552),  with self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 January 1973
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), issued 29 September 1995
* Department of Veterans Affairs (VA), service letter denying benefits, dated 24 April 1996
* National Archives (NA) Form 13038 (Certification of Military Service), dated 1 June 2012

FACTS:

1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2. The applicant enlisted in the Regular Army on 21 July 1967.

3. The applicant went absent without leave (AWOL) on or about 25 November 1968, and was subsequently dropped from the rolls 30 days later.

4. While AWOL, he was arrested and charged with committing 1st degree murder during the perpetration of a robbery, on or about 1 April 1969.	He subsequently plead guilty to 2nd degree murder and was sentenced to life imprisonment. His sentence was commuted from life to 30 years on 15 March 1972.
1. 

5. Special Order Number 53, issued by Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, WA on 17 July 1972, returned the applicant to military control at the
U.S. Army Personnel Control Facility, Fort Lewis, effective 30 March 1972, for the purpose of discharge processing.

6. Special Orders Number 30, issued by Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis, WA on 30 January 1973, ordered the applicant’s under other than honorable conditions (UOTHC) discharge, under the provisions of Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)), effective the same date.

7. The applicant was discharged on 31 January 1973. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, and his service was characterized as UOTHC.  Item 30 (Remarks) of his DD Form 214 contains the entries:

* 967 days lost under Sec 972 Title 10 USC 25 Nov 68 – 31 Mar 69; 1 Apr 69 – 21 Jul 67 [sic]
* 919 days lost subsequent to Normal ETS [expiration term of service] 22 Jul 67 – 30 Jan 73

8. The applicant was issued a DD Form 215 on 22 September 1980, which changed item 11c (Reason and Authority) of his DD Form 214 to "SEC VI 635-206 SPD-JKB." He was issued a second DD Form 215 on 29 September 1995, which changed his social security number and date of birth.

9. The applicant submits the following evidence for consideration:

* DD Forms 214 and 215
* VA service letter showing denial of benefits, with detailed discharge information
* National Archives Certification of Military Service that shows he was honorably discharged on 31 January 1973 [this document is not corroborated by any other record document]

10. The applicant had 127 lost days from on or about 25 November 1968 through on or about 31 March 1969, which coincided with his period of AWOL service, and an additional 1401 days of lost time prior to being discharged, which coincided with his period of incarceration.
1. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record of the applicant, the Board concluded that the current information on the applicant’s DD Form 214 accurately depicts the military service of the applicant and that no error or injustice was present.
For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE:










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.






1535874
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.


REFERENCES:

1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

3. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:

   a. When the Soldier was initially convicted by civil authorities, or action taken against the Soldier that was tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year; or

   b. When initially convicted by civil authorities of an offense that involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code.
   a. 

4. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.

   a. The inclusive dates of non-pay periods/time lost during the preceding two years were to be entered in item 26a of the DD Form 214.

   b. Paragraph 2-50b(13) stated if the individual lost any time prior to normal ETS as indicated on his or her DA Form 20, the total number of days lost with inclusive dates was entered in item 30.