IN THE CASE OF:	  

	BOARD DATE:	  16 September 2008

	DOCKET NUMBER: AR20080005056 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show his rank as private first class, pay grade E-3; award of the Good Conduct Medal, Expert Marksmanship Qualification Badge, and the Driver and Mechanic Badge for all of the vehicles he was qualified to operate; and to be paid for 5 days of accrued leave.        

2.  The applicant states, in effect, that these errors need to be corrected on his DD Form 214.

3.  The applicant provides copies of his DD Form 214, promotion orders, award orders, and his Installation Clearance Record.  

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 18 January 1966, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 56C (Petroleum Specialist).  He was subsequently assigned for duty at Fort Lee, Virginia.

3.  Records show that the applicant was absent without leave (AWOL) on 
27 and 30 June and 1 July 1966.  The available records do not contain what, if any, punishment was given for these absences.

4.  On 7 July 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for breaking restriction.  The punishment included 7 days of extra duty.

5.  On 23 December 1966, the applicant accepted NJP for being AWOL from
20 to 22 December 1966.  The punishment included a forfeiture of $19.00 pay per month for 1 month.

6.  On 16 April 1967, the applicant accepted NJP for being AWOL from 
21 February to 20 March 1967.  The punishment included a reduction to pay grade E-1, a forfeiture of $48.00 pay per month for 2 months, and 30 days of restriction and extra duty.

7.  On 3 August 1967, the applicant was convicted by a summary court-martial of being AWOL from 19 to 22 May 1967; and from 29 May to 23 June 1967.  His sentence consisted of restriction for 60 days.

8.  On 24 July 1968, the applicant was convicted by special court-martial of being AWOL from 29 August 1967 to 13 June 1968.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of $46.00 pay per month for 6 months.  He served 35 days in confinement.

9.  On 10 October 1968, the applicant was reassigned for duty at Fort George G. Meade, Maryland.

10.  On 3 November 1968, the applicant accepted NJP for being AWOL for approximately 4 hours on 2 November 1968.  The punishment included a forfeiture of $25.00 pay per month for 1 month (suspended).

11.  Special Orders Number 244, 6th Armored Cavalry Regiment, Fort George G. Meade, dated 18 December 1968, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle [M-14] Bar.
12.  Unit Orders, Troop C, 1st Squadron, 6th Armored Cavalry Regiment, Fort George G. Meade, dated 17 January 1969, promoted the applicant to the rank of private first class, pay grade E-3.

13.  The applicant’s Installation clearance Record (DA Form 137) issued on 
27 January 1969, shows that his pay grade was E-3 and that his company commander had recommended him for award of the Good Conduct Medal. 

14.  On 13 February 1969, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training). He had completed 2 years of creditable active duty service and he had 392 days of lost time.  His DD Form 214 shows that his rank was private, pay grade E-2; that he had been paid 5 days of accrued leave; and that his awards included the Marksman Marksmanship Qualification Badge with Rifle [M-14] Bar.  It did not show any Driver and Mechanic Badges or related military training. 

15.  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.  The regulation states that, after 27 August 1940, three years of qualifying service was required for award of the Good Conduct Medal, but during the World War II era, the first award could be made based on one year of qualifying service provided that service occurred between 7 December 1941 to 2 March 1946.  The current standard for award of the 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 Federal military service.  The regulation also states that Conviction by courts-martial terminates a period of qualifying service.  A new period begins the day following completion of the sentence imposed by the court-martial.

16. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part for award of the Driver and Mechanic Badge.  To receive award, the individual must qualify for and possess a U.S. Government Motor Vehicles Operator’s Identification Card, occupy a duty position with the title of driver or assistant driver for a minimum of 12 consecutive months or during 8000 miles have no Army motor vehicle accident or traffic violation recorded on the Equipment Operator’s Qualification Record, and must Perform satisfactorily for a minimum of one year as an active qualified driver instructor or motor vehicle driver examiner.



17.  Title 31, U.S. Code, § 3702 provides a 6-year statute of limitations on claims against the Government and the Comptroller General has held that an action by a Corrections Board is insufficient to authorize payment beyond the period of limitations. 

DISCUSSION AND CONCLUSIONS:

1.  Unit orders and the applicant’s Installation Clearance Record show that he was a private first class, pay grade E-3, at the time of his release from active duty.  Therefore, his DD Form 214 should be corrected to show that rank and pay grade. 

2.  Special orders show that the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  Therefore, his DD Form 214 should be corrected to show this award.

3.  The available evidence shows that the unit commander had recommended the applicant for award of the Good Conduct Medal.  However, the evidence of record clearly shows that he had received two courts-martial during his active duty service.  Furthermore, he did not complete the minimum requirement of 
1 year active duty service upon completion of the sentence imposed by this last court-martial.  Therefore, he was not eligible for award of the Good Conduct Medal.

4.  There is no evidence of record showing that the applicant qualified for award of a Driver and Mechanic Badge for any vehicle.  The applicant has not provided any supporting evidence or argument to convince the Board that he is eligible for this award.  Therefore, his request for award of the Driver and Mechanic Badge should be denied.  

5.   There is no available evidence of record, and the applicant has not provided any substantiating evidence to support his contention that he did not receive payment for the 5 days of accrued leave as indicated on his DD Form 214.  Furthermore, it has been more than 6 years since the applicant should have discovered this error.  Therefore, there is no action this Board could take that would authorize payment despite the 6-year limitation on claims established by Title 31, U.S. Code, section 3702.  The Board cannot simply extend that limitation.




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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

      a.  showing in Items 5a (Rank), and 5b (Pay Grade) of his DD Form 214: private first class, pay grade E-3; 
      
      b. deleting from Item 24 of his DD Form 214:  Marksman Badge Rifle M14; and
      
      c.  adding in Item 24 of his DD Form 214: Expert Marksmanship Qualification Badge with Rifle Bar. 

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 awarding him the Good Conduct Medal, Driver and Mechanic Badge, or paying him for 5 days of accrued leave.




__________ _X    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080005056



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