RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070010035 


	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:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice be voided; that he be reinstated to active duty; and that his military records be corrected to show his rank as staff sergeant, pay grade E6.  He requests correction his unit and dates of assignment and award of Army Good Conduct Medal, and the Army Commendation Medal with Oak Leaf Cluster.  Additionally, he requests that his Armed Services Vocational Aptitude Battery (ASVAB) scores be included on his Personnel Qualification Record (DA Form 2-1).  

2.  The applicant states, in effect, that there was a cover up or injustice done to him.  He asks the question, “How could a super troop go from outstanding to the loss of a stripe, money, and extra duty in less than 90 days; especially for a first offense.”  He contends that this punishment was very harsh for a one-time incident which wiped away his career dreams.  He further states that he served in A Battery, 3rd Battalion, 41st Field Artillery from 15 February to 30 September 1990.  

3.  The applicant provides copies of a letter to his Congressman, dated 20 April 2007, requesting a congressional inquiry; DA Form 2-1; Enlisted Evaluation Reports (EER’s) and Noncommissioned Officer Evaluation Reports (NCOER’s); Permanent Orders awarding him the Army Commendation Medal with First Oak Leaf Cluster, dated 23 January 1990; an undated approval memorandum for award of the Army Good Conduct Medal for the period ending June 1990; ASVAB Worksheet dated 15 May 1992; Physical Profiles (DA Form 3349) dated in June, July, and August 1990; extracts of Army medical records dated between 27 February 1989 and 12 August 1990; and a Depleted Uranium (DU) Questionnaire (VA Form 10-9009D) dated 29 November 2005.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 20 June 1980, the applicant enlisted in the Delayed Entry Program, United States Army Reserve.  On 15 June 1981, he entered active duty, completed his initial training, and was awarded military occupational specialty (MOS) 13B1O (Cannon Crewman).

3.   The applicant completed a series of assignments both overseas and in the United States and progressed through the ranks attaining staff sergeant, pay grade E6 on 24 November 1986.

4.  Item 35 (Current and Previous Assignments) of the applicant’s DA Form 
2-1 shows that on 10 February 1990, he was enroute from the Federal Republic of Germany to his new unit at Fort Stewart, Georgia.  It further shows that effective 21 March 1990, the applicant was assigned for duty as a Howitzer Section Chief with A Battery, 3rd Battalion, 41st Field Artillery, Fort Stewart, Georgia.  This is the last assignment entry made on his DA Form 2-1.

5.  On 18 June 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for behaving with disrespect toward his superior commissioned officer on or about 24 May 1990 at Fort Stewart, Georgia.  The punishment included reduction to sergeant, pay grade E5, and a forfeiture of $300.00 pay per month for 1 month.  The applicant appealed the punishment and submitted additional matters in person.  On 
25 June 1990, a judge advocate considered the appeal and opined that the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the crime committed.  On 1 August 1990, the commander denied the applicant’s appeal.  The applicant’s reduction was effective 18 June 1990.

6.  The Chief, Personnel Records Division, 24th Personnel Services Company, Fort Stewart, Georgia, on an memorandum dated 7 July 1990, informed the Commander, A Battery, 3rd Battalion, 41st Field Artillery, that the applicant was tentatively scheduled for an award of the Army Good Conduct Medal for the period ending June 1990.  The commander approved the action.  [Someone wrote "3/41st Svc" at the top of this document which seems to indicate the applicant's assigned unit at the time.]

7.  The Chief, Personnel Records Division, 24th Personnel Services Company, Fort Stewart, Georgia, on an undated memorandum, informed the Commander, Services Battery, 1st Battalion, 41st Field Artillery, that the applicant was tentatively scheduled for an award of the Army Good Conduct Medal for the period ending June 1990.  The commander approved the action.

8.  The applicant’s NCOER’s for the periods from February 1990 to January 1991; and from December 1991 to June 1992, show him assigned to the Service Battery, 1st Battalion, 41st Field Artillery.  The NCOER for the period from February to November 1991 is not available for review. 

9.  On 13 August 1991, an MOS/Medical Retention Board (MMRB) convened at Fort Stewart, Georgia, concerning the applicant's ability to perform the duties required for MOS 13B2O.  It found that he was not capable of performing the full range of physical tasks required of this MOS or of any other MOS in a world-wide field environment.  It recommended that he be referred to the Physical Disability System for evaluation.  The MMRB recommendation was approved on 
26 September 1991.

10.  On 23 December 1991, a Physical Evaluation Board (PEB) convened to determine the applicant's physical fitness.  It found that he was physically fit to perform the duties of his office, grade, and MOS in accordance with his physical profile and assignment limitations.   The PEB was approved on 30 January 1992.

11.  The ASVAB Worksheet, dated 15 May 1992, shows that the applicant was assigned to the Service Battery, 1st Battalion, 41st Field Artillery Regiment when he retested.  

12.  Item 8 (Aptitude Area Scores) of the applicant’s DA Form 2-1 shows his test scores as of 18 June 1981, but not his 1992 test scores.

13.  The applicant’s Certificate of Release or Discharge from Active Duty 
(DD Form 214) shows that on 2 September 1992, he was voluntarily discharged under the provisions of Army Regulation 635-200, paragraph 16-8, Fiscal Year 92 Enlisted Voluntary Early Transition Program.  His characterization of service was honorable.  The applicant was paid a lump sum separation bonus of $28,754.26.  His rank at the time of separation was sergeant, pay grade E5 and he had completed 11 years, 2 months, and 18 days of creditable active duty service.

14.  Item 8a (Last Duty Assignment and Major Command) of the applicant’s 
DD Form 214 shows his unit as Service Battery, 1st Battalion, 41st Field Artillery Regiment, Forces Command. 

15.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 lists the Army Service Ribbon, National Defense Service Medal, Army Lapel Button, southwest Asia Service Medal with two bronze service stars, Army Good Conduct Medal (three awards), Kuwait Liberation Medal, Army Achievement Medal (six awards), Noncommissioned Officers Professional Development Ribbon with Numeral Two, Expert Marksmanship Qualification Badge with rifle, Pistol and Grenade Bars, and the Driver and Mechanic Badge with Wheel and Track Bars.

16.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that NJP is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

17.  Chapter 3 of the regulation further provides that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the Soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a Soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice.

18.  Army Regulation 600-8-22 (Military Awards) provides that the 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.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.   Conviction by court-martial, bar to reenlistment, or not being retained for further service, constitutes termination of a qualifying period of service for award of the Army Good Conduct Medal.  Receiving NJP does not by itself constitute an automatic denial of this award.
19.  The DA Form 2-1 (Personnel Qualification Record – Part II) is a four-page document used to assist with the personnel management of Regular Army, National Guard, and Reserve Soldiers.  It is completed by hand and is maintained during the period of the Soldier’s service.  It becomes a historical record upon the discharge of the Soldier and is no longer maintained.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant attained the rank of staff sergeant, pay grade E6, with a date of rank of 24 November 1986.  It also shows that he accepted NJP and was subsequently reduced in rank to sergeant, pay grade E5, on 18 June 1990. There is no evidence showing that an unwaived legal right or factual error(s) have clearly and affirmatively injured the substantial rights of the applicant.  There is no evidence showing that this reduction was improper or unjust.  Furthermore, there is no evidence showing that the applicant was subsequently promoted to staff sergeant.  Therefore, his request to change his records to show his rank as staff sergeant should not be granted.  

2.  The evidence clearly shows that the applicant was discharged under the provisions of the Fiscal Year 92 Enlisted Voluntary Early Transition Program.  His characterization of service was honorable.  The applicant was paid a lump sum separation bonus of $28,754.26.  Therefore, even if his NJP were to be voided, there is no basis to reinstate the applicant to active duty.

3.  The applicant's DA Form 2-1 shows that he was assigned to A Battery, 3rd Battalion, 41st Field Artillery Regiment on 21 March 1990.  It further shows that his initial assignment with this organization was as a Howitzer Section Chief in A Battery.  He was still with this unit in June 1990 when he received NJP.  However, his NCOER for the period from February 1990 to January 1991; indicates that he was assigned to the Service Battery, 1st Battalion, 41st Field Artillery Regiment.  This conflicting evidence makes it impossible to determine the applicant’s exact dates of assignment to these units.  Therefore, the applicant’s request to correct his records with regard to his units of assignment should not be granted.    

4.  The applicant's contention that there was a cover up or an injustice is not substantiated by any evidence of record.  Furthermore, the applicant has not provided sufficient evidence to show any such injustice or cover up.  The conflicting entries on various documents showing different units of assignment at the same time is more likely due to clerical errors than to any cover up.

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 the aforementioned requirement.

6.  The evidence of record shows that the applicant was awarded two Army Commendation Medals.  They are both recorded on his DA Form 2-1 and on his DD Form 214.  Therefore, his request to correct his records to add these awards should not be granted.

7.  The evidence of record shows that the applicant entered active duty in June 1981 and remained on active duty until his discharge in September 1992.  The Army Good Conduct Medal is awarded for each 3-year period of qualifying service.  The applicant had 11 years, 2 months, and 18 days of active duty service.  He was awarded three Army Good Conduct Medals for 9 years of his service.  The remaining 2 years, 2 months and 18 days of his service did not qualify him for another award of a fourth Army Good Conduct Medal.  Therefore, his request to add this award to his record should not be granted.

8.  The evidence of record shows that the applicant’s 1981 ASVAB scores were recorded on his DA Form 2-1.  It further shows that his 1992 retest scores were not posted to this form prior to his discharge.  Since the DA Form 2-1 is a personnel tool used for the management of Regular Army, Guard and Reserve Soldiers, there is no need to update it once an individual has been discharged.  However, in this case a copy of his 1992 ASVAB scores will be filed in his records.  Therefore, his request to update his DA Form 2-1 should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRH___  __DKH__  __EEM__  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.




___  David K. Haasenritter_
          CHAIRPERSON








INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20080125 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126
2.

3.

4.

5.

6.