RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060009036
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Acting Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his military records be corrected to show the award of the Meritorious Unit Commendation.
2. The applicant essentially states that he was assigned to the 5th Battalion, 5th Air Defense Artillery in Korea when the battalion was cited for award of the Meritorious Unit Commendation.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge From Active Duty), orders reassigning him from Fort Bliss, Texas to Korea, and a copy of a photograph of him wearing a uniform with the 2nd Infantry Division organizational patch in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 20 August 1994, the date of his release from active duty. Although the application submitted in this case is dated 18 February 2006, it was not received until 30 August 2006.
2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicants failure to timely file.
3. The applicant provided orders which reassigned him from Fort Bliss, Texas to Korea, with an availability date of on or about 29 August 1992. His official military personnel file (OMPF) contains two documents which show that his unit of assignment while in Korea was Battery C, 5th Battalion, 5th Air Defense Artillery.
4. The applicant did not provide any evidence that his battalion in Korea was awarded the Meritorious Unit Commendation while he was assigned to it. Also, a check of the approved unit awards at the United States Army Human Resources Command Military Awards Branch website failed to show that the 5th Battalion, 5th Air Defense Artillery was awarded the Meritorious Unit Commendation while the applicant was assigned to this unit.
5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show the award of the Meritorious Unit Commendation.
2. While the Board does not doubt the veracity of the applicants claim to entitlement to award of the Meritorious Unit Commendation, there is no evidence in his military records, and the applicant failed to produce any evidence which shows the Meritorious Unit Commendation was awarded to the 5th Battalion, 5th Air Defense Artillery while he was assigned to this unit. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 August 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
19 August 1997. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___KLW__ ___E.F._ __CD___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
_____Kenneth L. Wright__
CHAIRPERSON
INDEX
CASE ID
AR20060009036
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES 1.
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