RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070015402 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

Member

Mr. Jeffrey C. Redmann

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:

	a.  reconsideration of his earlier request for correction of his records to show he was separated due to physical disability retirement rather than disability severance pay; and

	b.  correction of his records to show award of the Army Commendation Medal.

2.  The applicant states, in effect, that:

	a.  he has been trying to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect medical retirement for years due to his worsening medical condition and that he is currently rated at 80 percent disability; and 

	b.  his Army Commendation Medal was awarded after his discharge.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Certificate, dated 28 March 1994, awarding him the Army Commendation Medal;

	b.  Department of Veterans Affairs letter, dated 16 August 2007.

	c.  Department of Veterans Affairs Certificate of Disability, dated 28 November 2005.

	d.  Radiology Diagnostic Report, dated 25 May 2000, VA Medical Center, Atlanta, Georgia.

	e.  Supervisor Letter of Support, dated 4 April 2006.

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.  The ABCMR records show that the applicant's original request for correction of his records to show he was separated due to physical disability retirement rather than disability severance pay was denied in ABCMR Docket Number AC97-06025, dated April 15, 1998.  Records show two reconsiderations were acted upon by ABCMR Docket Numbers AR1999025187 on November 3, 1999 and AR2003083415, on May 1, 2003.  AR 15-185 provides if the ABCMR receives a request for reconsideration more than 1 year after the Board's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.  The applicant has been notified by separate correspondence that there is no further action contemplated by the ABCMR since he is not eligible for further reconsideration by this Board.  The portion of his request that pertains to medical retirement will not be discussed further in this Record of Proceedings. 

3.  The applicant's records show that, with prior enlisted service in the Army National Guard, he enlisted in the Regular Army for a period of 3 years on 4 March 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember). He was honorably separated and transferred to the U.S. Army Reserve Control Group on 29 February 1988. 

4.  After a 3-year break in service, the applicant reenlisted in the Regular Army on 25 February 1991 and was subsequently assigned to Headquarters and Headquarters Battery, 3rd Battalion, 29th Field Artillery, 4th Infantry Division, Fort Carson, Colorado.  He was honorably discharged on 14 January 1994 for physical disability with severance pay.

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Army Achievement Medal (2nd Oak Leaf Cluster), the Army Lapel Button, the Army Service Ribbon, the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 13 does not show award of the Army Commendation Medal.

6.  The applicant provided a Department of the Army Certificate for award of the Army Commendation Medal, dated 15 April 1994.  This certificate shows that the applicant was awarded the Army Commendation Medal for meritorious achievement while assigned to Headquarters Battery, 3rd Battalion, 29th Field Artillery, as the Battery Training Noncommissioned Officer.  The period of the award is not indicated on the certificate.

7.  This certificate is authenticated by a brigade level commander and contains the order number 11-2, dated 28 March 1994.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

Orders show the applicant was awarded the Army Commendation Medal while assigned to Headquarters and Headquarters Battery, 3rd Battalion, 29th Field Artillery, 4th Infantry Division, Fort Carson, Colorado, on 28 March 1994.  Therefore, he is entitled to correction of his records to show this award.

BOARD VOTE:

__ena___  __pbf___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show award of the Army Commendation Medal.



						Eric N. Anderson
______________________
          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.