RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070000482 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine I. Fields 

Member

Mr. Randolph J. Fleming

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 correction of his Certificates of Release or Discharge from Active Duty (DD Forms 214) and his New York Army National Guard Report of Separation and Record of Service (NGB Form 22) and Honorable Discharge Certificate (NGB Form 55) to accurately show award of the Global War on Terrorism Service Medal, Army Good Conduct Medal, National Defense Service Medal; and to add his prior service, and Infantry Training Course, and M240 Leaders Course.  He also requests that his rank be changed from specialist to sergeant and the level of his military occupational specialty (MOS) changed from "1O" to "2O". 

2.  The applicant states, in effect, that his separation documents do not show his authorized awards, all of his training, the rank he should have received, and prior service credit.  The applicant further contends that since he was assigned for duty as an Infantry Fire Team Leader, a sergeant, pay grade E5, position, he should have been promoted to this rank.    

3.  The applicant provides copies of his DD Forms 214, NGB Forms 22 and 55, educational transcripts, award certificates and orders, and a letter of support from his former platoon sergeant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 June 2002, the date of his release from active duty.  The application submitted in this case is dated 28 December 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 requests, in part, correction of his New York Army National Guard (NYARNG) separation records to add authorized awards, completed training, and to change his rank.  These are records of the state of New York, and as such, this Board has no jurisdiction to correct these records.  The applicant has been notified by separate correspondence that he must apply to the New York State Adjutant General for assistance in correcting his NYARNG records.   Therefore, correction of these records will not be discussed further in this Record of Proceedings. 

4.  On 21 September 1998, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded MOS 11B1O (Infantryman).

5.  On 1 May 2000, the applicant was promoted to the rank of specialist, pay grade E4.

6.  Records show that the applicant completed the M240-B Leaders Course during 3 to 11 January 2001, while assigned to the 1st Battalion, 24th Infantry Regiment, Fort Lewis, Washington.   

7.  On 19 June 2001, the applicant enlisted in the NYARNG for 4 years, 
10 months, and 29 days, beginning in the rank of specialist, pay grade E4.  He was directed to report to his Reserve unit within 30 days of his release from active duty.

8.  On 20 September 2001, the applicant was released from active duty and transferred to the NYARNG.  He had completed 3 years of creditable active duty.

9.  Item 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of the applicant's DD Form 214 for the period of service ending 20 September 2001, shows specialist, E4. 

10.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for period ending 
20 September 2001, lists his awards as the Army Commendation Medal, Army Achievement Medal, Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Infantryman Badge.  It does not show award of the Army Good Conduct Medal, National Defense Service Medal, or the Global War on Terrorism Service Medal.

11.  Item 14 (Military Education) of the applicant's DD Form 214 for the period ending 20 September 2001, lists the 1-week Combat Lifesaver Course, completed in 2000. 



12.  On 26 October 2001, the applicant was ordered to active duty in support of Operation Noble Eagle.  He served as a Team Leader with Company A, 1st Battalion, 69th Infantry Regiment, located at the United States Military Academy, West Point, New York, from 11 November 2001 to 1 June 2002.  

13.  On 29 June 2002, the applicant was released from active duty and transferred to Company A, 1st Battalion, 69th Infantry (Mechanized), New York, New York.  He had completed 8 months and 4 days of creditable active duty during this period of service.

14.  Item 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of the applicant's DD Form 214 for the period of service ending 29 June 2002, shows specialist, E4. 

15.  Item 11 (Primary Specialty) of the applicant's DD Form 214 for the period of service ending 29 June 2002, lists 11B1O, Infantryman, 3 years and 4 months.

16.  Item 12d (Total Prior Active Service) and 12e (Total Prior Inactive Service) indicates that the applicant was separated from service on temporary records and that a DD Form 215 is to be issued to provide missing data.  [Item 12d should read 3 years, 0 months, and 0 days, based on his active duty service from 21 September 1998 to 20 September 2001.  Item 12e should read 1 month and 
7 days based on his inactive service from 21 September 2001 to 25 October 2001.]

17.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for period ending 
29 June 2002, lists his awards as the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Armed Forces Reserve Medal with "M" Device, Army Service Ribbon, and the Expert Infantryman Badge. It does not show award of the Army Good Conduct Medal, or the Global War on Terrorism Service Medal.

18.  Item 14 (Military Education) of the applicant's DD Form 214 for the period ending 29 June 2002 lists "None."

19.  On 22 September 2006, the applicant's former platoon sergeant wrote a letter of support.  He stated that the applicant was assigned to duty as an Infantry Fire Team Leader and performed this duty with the utmost professionalism and competence.

20.  Army Regulation 635-5 (Separation Documents) provides, in pertinent part, that training course for combat skills are not to be listed in Item 14 (Military Education) of the DD Form 214.

21.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  The current standard for award of the Army Good Conduct Medal is 3 years of qualifying service, but as little as one year is required for the first award in those cases when the period of service ends with the termination of active Federal military service.  Denial requires the commander’s disqualifying comments. 

22.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Global War on Terrorism Service Medal for Soldiers who have participated in or served in support of Global War on Terrorism Operations outside of the designated area of eligibility determined for award of the Global War on Terrorism Expeditionary Medal on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized this award.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to sergeant, pay grade E5 based on his assignment to an authorized position is not sufficiently supported by the available evidence.  The letter of support provided by his former platoon sergeant only confirms that the applicant performed the duty of an Infantry Fire Team Leader.  It falls short of showing that he was actually assigned to a valid position requiring a sergeant.  Therefore, the applicant's request to show on his DD Form 214 his rank as a sergeant should not be granted. 

2.  In view of the above, the applicant's request to change the skill level of his 11B MOS from "1O" to "2O" should not be granted.

3.  The evidence clearly shows that the applicant served on active duty for a 
3-year period from 21 September 1998 to 20 September 2001.  Therefore, his DD Form 214 for the period ending 29 June 2002 should be corrected to show this active duty in Item 12d (Total Prior Active Duty).

4.  The evidence clearly shows that the applicant completed the M240-B Leaders Course in January 2001.  Therefore, it should be added to his DD Form 214 for the period ending 20 September 2001.  However, the 14-week Infantry Training Course is not authorized to be recorded on the DD Form 214. 

5.  The evidence of record clearly shows that the applicant served a qualifying period of time for an initial award of the Army Good Conduct Medal.  Furthermore, there is no evidence showing that his commander took any action to deny him this award.  Therefore, he should be awarded the Army Good Conduct Medal.

6.  The evidence of record shows that the applicant served during a qualifying period of service for award of the Global War on Terrorism Service Medal.  Therefore, his records should be corrected to show this award.

7.  The evidence of record shows that the applicant served during a qualifying period of service for award of the National Defense Service Medal and that this award is properly listed on his DD Form 214.  Therefore, the applicant's request to add this award should not be granted.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
28 June 2005.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_LDS____  _EF_____  _RJF___  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:

	a.  awarding him the Army Good Conduct Medal for the period from 
21 September 1998 to 20 September 2001;

	b.  showing in Item 14 (Military Education) of his DD Form 214 for the period ending 20 September 2001: M240-B Leaders Course, 2 weeks, January 2001;

	c.  showing in Item 12d (Total Prior Active Service) of his DD Form 214 for the period ending 29 June 2002: 3 years, 0 months, and 0 days;

	d.  showing in Item 12e (Total Prior Inactive Service) of his DD Form 214 for the period ending 29 June 2002:  1 month and 7 days; and

	e.  showing that, in addition to the awards shown on his DD Forms 214, his authorized awards include the Army Good Conduct Medal and the Global War on Terrorism Service Medal.

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 changing his rank from specialist to sergeant, changing the skill level of his MOS 11B, awarding the National Defense Service Medal, or adding the Infantry Training Course to his DD Form 214.




      _Linda D. Simmons___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.