RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013756 


	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.


x
	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 that his records be corrected to reflect his new legal name, that he be awarded the Good Conduct Medal (GCMDL), that his award of the National Defense Service Medal (NDSM) and that his 100% disability rating from the Department of Veterans Affairs (VA) be included on his report of separation (DD Form 214).  

2.  The applicant states, in effect, that he had his first and middle name changed in 1983 and desires his records to be corrected to reflect his new name.  He goes on to state that his award of the NDSM is not reflected on his DD Form 214 and that he should have been awarded the GCMDL.  He also states that his disability rating from the VA should be reflected on his DD Form 214.    

3.  The applicant provides a copy of his VA Rating Decision, a copy of his legal name change dated 21 November 1983 and a copy of his DD Form 214.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 22 September 1972.  The application submitted in this case is dated 22 September 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 applicant’s failure to timely file.

3.  The applicant was inducted on 18 September 1969 and underwent his basic combat training (BCT) at Fort Lewis, Washington.  He completed his BCT and was transferred to Fort Eustis, Virginia to undergo his advanced individual training (AIT) as a cargo handler.  He completed his AIT and was transferred to Fort Sill, Oklahoma.

4.  On 21 July 1970, he was honorably discharged for the purpose of immediate reenlistment.  He had served 10 months and 4 days of total active service and his DD Form 214 shows he was awarded the NDSM. 

5.  On 22 July 1970, while serving in the pay grade of E-3, he reenlisted for a period of 4 years and assignment to Korea.  He was transferred to Korea on 21 September 1970 and was advanced to the pay grade of E-4 on 14 June 1971.

6.  On 26 August 1971, nonjudicial punishment (NJP) was imposed against him for being disrespectful in language and deportment towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 30 days), a forfeiture of pay, extra duty and restriction.

7.  He departed Korea on 13 October 1971 and was transferred to Fort Eustis, Virginia for assignment to a transportation company. 

8.  On 13 January 1972, NJP was imposed against him for being drunk and disorderly and for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 30 days), a forfeiture of pay, extra duty and restriction.

9.  On 12 July 1972, NJP was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and extra duty.  

10.  On 22 August 1972, NJP was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer and for being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-2, extra duty and restriction.

11.  On 29 August 1972, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of Army Regulation       635-212, for unsuitability.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to numerous counseling sessions conducted by the first sergeant, training officer and commander, and his unsatisfactory conduct and performance of duty.

12.  On 31 August 1972, after consulting with counsel, the applicant waived all of his rights.  However, he elected to submit a statement in his own behalf whereas he asserted that he believed that he would be a better Soldier if he were stationed closer to his home in California and requested that he be allowed to serve out the remainder of his service.

13.  The appropriate authority approved the recommendation for discharge on 15 September 1972 and directed that he be furnished an Honorable Discharge Certificate.

14.  Accordingly, he was honorably discharged on 22 September 1972, under the provisions of Army Regulation 635-212, for unsuitability.  He had served 2 years, 2 months and 1 day of active service during his current enlistment for a total of 3 years and 5 days of service.  His DD Form 214 indicates that he was awarded the Armed Forces Expeditionary Medal and the Sharpshooter Marksmanship Badge with M-16 rifle bar. 

15.  A review of the applicant’s records shows that the applicant had conduct and efficiency ratings that ranged from excellent to fair.  At the time of his separation his conduct and efficiency ratings were rated as unsatisfactory and good, respectively.  A statement prepared by the applicant’s commander that is present in the applicant’s records indicate that the applicant’s low standards of conduct and efficiency were brought to his attention by the former commander and first sergeant and that he as the new commander and other members of the chain of command counseled the applicant repeatedly and that the applicant remained a constant disciplinary problem who could not be counted on to do any job assigned without aggression towards his supervisors.

16.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

17.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information that is in effect at the date of separation.  Events that occur after the separation date are not authorized to be entered on the DD Form 214 retroactively.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the NDSM and that award was omitted from his DD Form 214 at the time of his discharge on 22 September 1972.  Accordingly, it would be in the interest of justice to add it to his DD Form 214 at this time.

2.  In the absence of evidence to the contrary, it must be presumed, based on the applicant’s undistinguished record of service that the commander did not recommend the applicant for award of the GCMDL.  Furthermore, given the commander’s comments and the fact that he initiated discharge action against the applicant, it appears that he did not intend for the applicant to receive the GCMDL.  Likewise, the Board does not find a sufficient basis to award him the GCMDL.   

3.  The applicant’s contention that his DD Form 214 and his records should reflect his legal name change and his VA disability rating has been noted and found to be without merit.  The Army has an interest in maintaining the integrity of records and since both of those actions occurred subsequent to the applicant’s discharge, they are not authorized to be entered on the records.  However, the documents will be filed in the applicant’s records as a matter of record in order to clarify any questions that may arise in the future.     

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 September 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 September 1975.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x __  __x__  _x ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was awarded the NDSM.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the GCMDL and changing the applicant’s records to reflect his new name and VA disability rating.   




_x_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013756
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(PARTIAL GRANT)
REVIEW AUTHORITY

ISSUES         1.110.0000
189/CORR 214
2.

3.

4.

5.

6.