ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170006197 APPLICANT REQUESTS: correction of his time in service (TIS) and rank on his DD Form 214 (Report of Separation from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 states that the current TIS and rank are not consistent with the court order. The loss of 39 days TIS and rank for pay purposes does not match the information on his DD Form 257a (General Discharge Certificate) and DD Form 214. 3. The applicant provides a DD Form 214 reflecting discharge at the rank of Private (PVT)/E-1 effective 30 April 1976; line 21 reflects 39 days of lost time 4. A review of the applicant’s service records shows the following on: * 2 May 1974 - enlisted in the Army Reserve (Delayed Entry) * 7 June 1974 - entered active duty as an E-1 * 1 November 1975 - promoted to Specialist (SPC)/E4 * 12 March 1976 - a special court martial convened resulting in the applicant being found guilty of violating Article 91 of the Uniformed Code of Military Justice (UCMJ); the applicant was referred to as SPC * 22 March 1976 - the sentence of 3 months confinement and forfeiture of two- thirds pay for three months was adjudged; applicant was referred to as SPC * 9 April 1976 – order approved for Special Court Martial order# 10 dated 1 April 1976 approving court martial sentence and further directing that the applicant be transferred to the Area Confinement Facility, Fort Bragg, NC. be duly executed * 16 April 1976 – commander initiated his separation under the provisions of Army Regulation (AR) 635-200 (Enlisted Separations), Chapter 13 (Misconduct - Shirking); applicant referred to as PVT * 22 April 1976 - company commander requested for his discharge * 22 April 1976 - applicant acknowledged legal counsel and election of rights; applicant referred to as PVT and further waived his right to rehabilitation and counseling * 22 April 1976 - battalion commander concurred with recommendation * 29 April 1976 - brigade commander ordered the Chapter 13 discharge of the applicant * 30 April 1976 - Special Court Martial order# 84 discharged applicant as a PVT 5. The applicant’s DA 20 (Enlisted Qualification Record) section 21 (Time lost) reflects that the applicant’s actual confinement dates were 22 March through 29 April 1976; 39 days lost. 6. AR 635-200 chapter 13 paragraph 13-5a states that an individual is subject to separation under the provisions of this chapter when there is an established pattern for shirking. 7. United States Code 972 states that enlisted members required to make up time lost when he or she: * deserts * is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority * is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; ?or * is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; 8. AR 635-5 (Personnel Separations) paragraph 2-7(ab) (Time lost-in the preceding 2 years) is required by other Federal agencies and will include time lost under 10 USC 972 (paragraph 2-3, AR 635-200) and time in an excess leave status for the preceding 2 years only. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and the evidence in the records. The Board discussed the applicant’s record, the summary court-martial and the resulting sentence that included confinement. The Board determined that as a result of that court-martial, the applicant was reduced in rank and served 39 days in confinement which are correctly annotated on his DD Form 214 as lost time. The Board determined there is no error or injustice requiring a correction in the applicant’s records. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 7/3/2019 X--------------------- CHAIRPERSON Signed by: 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Board for Correction of Military Records (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. AR 635-200 chapter 13 paragraph 13-5a states that an individual is subject to separation under the provisions of this chapter when there is an established pattern for shirking. 3. United States Code 972 states that enlisted members required to make up time lost when he or she: * deserts * is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority * is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; ?or * is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; 4. AR 635-5 (Personnel Separations) paragraph 2-7(ab) (Time lost-in the preceding 2 years) is required by other Federal agencies and will include time lost under 10 USC 972 (paragraph 2-3, AR 635-200) and time in an excess leave status for the preceding 2 years only. 5. AR 15-80 (Army Grade Determination Review Board) states that generally, service in a grade will not be considered to have been satisfactory when the highest grade or rank was a result of a terminal leave promotion or reversion to a lower grade was: * expressly for prejudice or cause * due to misconduct * caused by nonjudicial punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ) * the result of the sentence of a court martial * there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was not satisfactory ABCMR Record of Proceedings (cont) AR20170006197 4 1