ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20180006011 APPLICANT REQUESTS: the 5 days lost time removed from his DD Form 214 (Report of Separation from Active Duty) for the period ending 7 December 1978. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Logan County Hospital Inpatient Admission Form * Logan County Hospital Outpatient Record Form * Logan County Hospital Pathology Department Form * Self-authored statement from treating physician * History and Physical Examination Form * Paralyzed Veterans of America letter to Department of Veterans Affairs (DVA) * 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 his commanding officer was not informed that he was in the hospital following a vehicle accident. He was falsely accused of being absent without leave (AWOL). 3. The applicant provides: * Logan County Hospital admission and discharge forms, treatment notes, physical examination report, pathology report, and a self-authored statement from . that shows he was the treating physician following his motorcycle accident on 6 September 1978 * Paralyzed Veterans of America letter to the DVA regional office that shows their office is representing the applicant in a claim in regards to the motorcycle accident, and submitting treatment records on his behalf to their office * DD Form 214 that shows in item 21 (Time Lost) he had 5 days for the period from 6 September 1978 to 10 September 1978 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 27 December 1977. b. On 6 September 1978, the Logan County Hospital admitted him to the hospital at 2140 hours following a motorcycle accident in which he suffered multiple abrasions and forehead lacerations. It was determined he could care for his wounds at home with close follow-up by the Fitzsimons Army Hospital in Aurora, CO. The disposition shows: * he was discharged from the hospital on 9 September 1978 * First Sergeant (1SG) at Fort Carson notified the hospital the applicant was AWOL and requested the county sheriff be notified when ready for discharge * the county sheriff followed-up and notified the state patrol * he was discharged with instructions not to return to work c. DA Form 4187 (Personnel Action) dated 8 September 1978, shows his duty status changed from present for duty to AWOL effective at 1130 hours on 6 September 1978. d. DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) from 6 September 1978 thru 10 September 1978 (5 days AWOL). e. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 19 September 1978, shows he was charged with one specification of AWOL from his unit, Service Battery, 1/27 FA from on or about 6 September 1978 until on or about 11 September 1978. He accepted non-judicial punishment under on 5 October 1978. f. The applicant’s immediate commander notified him he was initiating action to discharge him in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations), paragraph 5-37 (discharge for failure to demonstrate promotion potential) with a recommendation he be furnished an Honorable Discharge Certificate. The reasons for the proposed action were: * apathetic towards job and U.S. Army * poor military appearance * increased and continual indebtedness g. On 30 November 1978, the applicant acknowledged notification of the proposed discharge action under the provisions of AR 635-200, paragraph 5-31 (expeditious discharge program), the possible effects of a general discharge, and of the procedures and rights that were available to him. He acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. He acknowledged he was provided the opportunity to consult legal counsel. He consented to this discharge and declined to make a statement in his own behalf. h. On 30 November 1978, his immediate commander recommended his discharge with an Honorable Discharge Certificate. i. On 1 December 1978, the separation authority approved the applicant’s discharge under the provision of paragraph 5-31, AR 635-200, with an Honorable Discharge Certificate. k. DD Form 214, for the period ending 7 December 1978, shows he was discharged with an Honorable Discharge Certificate (DD Form 256A). The DD Form 214 also shows in: * item 10 (Reenlistment Code) RE-3 * item 18(a) (Net Active Service this Period) 11 months, and 6 days * item 18(d) (Prior Inactive Service) 0 years, 1 month, and 2 days * item 18(e) (Total Service for Pay) 1 year, 0 months, and 8 days * item 21 (Time Lost) 5 days – from 6 September 1978 to 10 September 1978 l. DD Form 215 dated 3 June 1981, shows the following information in regards to the DD Form 214 for the period ending on 7 December 1978. Item 10 (Reenlistment Code) RE-3, RE-3B 5. Army Regulation (AR) AR 635-200 (Personnel Separations-Enlisted Separations), states that this type of discharge and character of service are of great significance to the Soldier and must accurately reflect the nature of service performed. Eligibility for Veteran Benefits provided by law, eligibility for reentry into service, and acceptability for employment in the civilian community may be affected by these determinations. a. Chapter 5, paragraph 31 (Expeditious Discharge Program) (EDP) provides that members who demonstrated they cannot or will not meet acceptable standards required of enlisted personnel. Commanders specified in paragraph 1-32, and lieutenant colonels who are commanders of battalion and battalion size units, and colonels who are commanders of battalion size units are authorized to order separation under this program. Separation will be as specified below: * release from active duty and transfer to the individual readiness reserve to complete their military service obligation those members deemed to have the potential for service under conditions of full mobilization * discharge those members deemed to have no potential for useful service under conditions of full mobilization 6. By regulation (AR 635-5), the DD Form 214 provides the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service. The instructions for completing the DD Form 214 specified item 21 (Lost Time –Preceding 2 years) this information is required by other federal agencies. For the number of days of time lost under 10 USC 972 (para 2 – 4, AR 635 – 200) 7. AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), in effect during the applicant’s era of service shows, the code is used in statistical accounting to represent the reason for separation. The SPD code “JGH” is designated under involuntary discharges for the EDP for failure to maintain acceptable standards for retention. 9. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In reaching its determination, the Board can consider the applicant’s petition and his service record. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the board found no documentation showing the applicant was approved by the commander to be on leave. There is no evidence he reached out to his commander or 1SG to request leave. However, the Board found sufficient evidence to show that the applicant was in the hospital and those dates correspond with the dates he was AWOL. As a result, the Board concluded that granting relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 7 December 1978 by removing the lost time. 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 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. Army Regulation (AR) AR 635-200 (Personnel Separations-Enlisted Separations), Chapter 5, paragraph 31 (Expeditious Discharge Program) (EDP) provides that members who demonstrated they cannot or will not meet acceptable standards required of enlisted personnel. Commanders specified in paragraph 1-32, and lieutenant colonels who are commanders of battalion and battalion size units, and colonels who are commanders of battalion size units are authorized to order separation under this program. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service. The instructions for completing the DD Form 214 specified item 21 (Lost Time –Preceding 2 years) this information is required by other federal agencies. For the number of days of time lost under 10 USC 972 (para 2 – 4, AR 635 – 200) 4. AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), in effect during the applicant’s era of service shows, the code is used in statistical accounting to represent the reason for separation. The SPD code “JGH” is designated under involuntary discharges for the EDP for failure to maintain acceptable standards for retention. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In reaching its determination, the Board can consider the applicant’s petition and his service record. ABCMR Record of Proceedings (cont) AR20180006011 6 1