RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060014287 


	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.


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	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 records be corrected to reflect his rank and pay grade as Sergeant (SGT) E-5 and his awards of the National Defense Service Medal (NDSM), the Army Service Ribbon (ASR), the Army Commendation Medal (ARCOM) and the Army Achievement Medal (AAM).  

2.  The applicant states, in effect that he was serving in the rank of SGT E-5 and he was awarded the NDSM, the ASR, the ARCOM and the AAM and they were all omitted from his records at the time of separation. 

3.  The applicant provides additional documents with his application that explain his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 13 December 1978.  The application submitted in this case was received on 29 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 enlisted in the Regular Army in Newark, New Jersey on 6 January 1976 for a period of 3 years, training as an infantryman and assignment to the 7th Infantry Division at Fort Ord, California.  He completed his basic combat training at Fort Dix, New Jersey and his advanced individual training at Fort Polk, Louisiana, before being assigned to Fort Ord on 20 May 1976. 

4.  He was assigned to Combat Support Company, 3rd Battalion, 32nd Infantry Regiment, 7th Infantry Division and was advanced to the pay grade of E-3 on 1 December 1976.  He was advanced to the pay grade of E-4 on 1 October 1977 and on 10 May 1978, he attained secondary zone promotion list standing for promotion to the pay grade of E-5. 

5.  On 7 November 1978, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction from the pay grade of E-4 to the pay grade of E-3 (suspended for 30 days), extra duty and restriction.  The applicant did not appeal the punishment. 

6.  On 13 December 1978, he was honorably released from active duty (REFRAD) in the pay grade of E-4 at Fort Ord, due to the expiration of his term of service and the Christmas Early Release Program.  He had served 2 years, 11 months and 8 days of total active service and was awarded the Good Conduct Medal and marksmanship awards.  

7.  A review of his records fails to reveal any awards of the AAM or ARCOM being awarded to the applicant.  However, he did receive a letter of commendation from his platoon leader on 9 August 1978; however, there are no provisions for entering letters of commendation or achievement on the DD Form 214.

8.  Army Regulation 600-8-22 (Military Awards) shows that the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.

9.  Army Regulation 600-8-22 (Military Awards) as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  This regulation also provides that the second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal.

10.  Army Regulation 600-200, the regulation in effect at the time that governed enlisted promotions, provided in pertinent part, that individuals who accepted promotions to the pay grade of E-5 were required to serve at least 6 months on active duty in order to accept the promotion.  Personnel accepting promotion to the pay grade of E-6 were required to have 1 years of service remaining in order to accept the promotion.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was promoted to the pay grade of E-5 and that he was awarded the NDSM, the ASR, the ARCOM and the AAM have been noted and found to be without merit. 

2.   On 7 November 1978, approximately 1 month before he was REFRAD, the applicant was serving in the pay grade of E-4 when NJP was imposed against him.  His records contain no evidence to show he ever met the promotion cutoff score or that he was promoted.  Therefore, absent orders to show that he was in fact promoted and was eligible to accept the promotion, there appears to be no basis to correct his rank and pay grade. 

3.  The applicant’s contention that he was awarded the NDSM and the ASR have also been noted and found to lack merit.  The NDSM was not awarded to personnel serving during the years of 1976 through 1978 and the ASR was not established until 1 August 1981 and was made retroactive only for those personnel who had status after that date.  Accordingly, he was not authorized to be awarded those awards then or now.   

4.  The applicant’s contention that he was awarded the ARCOM and the AAM has been noted; however, he has failed to show through the evidence submitted or the evidence of record any indication of any such awards.  Therefore, absent evidence to show he was awarded either or both of those awards, there appears to be no basis to grant his request to add those awards to his records. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.   

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 December 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 December 1981.  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

___x_  __x_  __x_    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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060014287
SUFFIX

RECON

DATE BOARDED
20070329
TYPE OF DISCHARGE

DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.111.0000
189/corr 214
2.

3.

4.

5.

6.