IN THE CASE OF:	  
								 

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080007315 


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, in effect, reconsideration of an earlier appeal that his Military Medal of Gold and Green be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 28 October 1983. As a new issue, he also requests his general discharge be upgraded to fully honorable with his correct rank and grade.  In addition, he further requests that an honorable discharge certificate, a presidential award certificate, and a course completion certificate be issued with his new name of A_____ E_____ W___ III. 
  
2.  The applicant states, in effect, that he is submitting a copy of the medal that looks like the one he was awarded for the "Neighmegon" March.  The president signed a document sent to him and a medal was issued and orders had to be cut for this purpose.  

3.  The applicant states that his general discharge should be upgraded to honorable.  He was denied a reassignment prior to his Article 15 by his company commander.  The reason for the Article 15 was he had a profile at the time and could not stand in formation.  The applicant further states "When reinlisted (sic) it was placed on orders of rank upon completing of 27E this rank was E-5!"  The applicant continues upon issuance of an honorable discharge certificate that it should be corrected to show his new name along with his presidential award and that his course completion certificate from Redstone Arsenal, Huntsville, Alabama should be corrected as well.  He states, in effect, that he would like the award he received for driving Congressional Representatives at Fort Hood, Texas be added to his DD Form 214. 

4.  The applicant provides a copy of a medal similar to the one he was awarded.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050005497, on 2 February 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 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.

3.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, the evidence provided is new evidence which will be considered by the Board.

4.  The applicant enlisted in the Regular Army on 23 April 1979 under the name D_____ E_____ P_____.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant’s name as D____ E_____ P_____ on all documents and signatures in his military records.  The applicant successfully completed basic training and advanced individual training. He was awarded military occupational specialty (MOS) 13B (Cannon Crewman). 

5.  On 7 August 1980, the applicant received a Certificate of Appreciation for completing the 100 mile march at Nijmegen during the period 11 through 19 July 1980.

6.  On 25 September 1980, the applicant received a Letter of Appreciation for his performance during Exercise Certain Rampart during the period 15 September 
1980 through 25 September 1980.

7.  On 3 April 1981, the applicant was promoted to the rank and pay grade of Specialist (SPC)/E-4.  
8.  On 18 May 1982, the applicant was honorably discharged for the purpose of immediate reenlistment on 19 May 1982.  His DD Form 4 shows he reenlisted for Army service school option (MOS 27E Tow Dragon Repairer).  There is no evidence in his contract that shows he would be advanced to the rank of E-5 after completing the course.

9.  Headquarters, United States Army Missile Command Orders 226-17, dated 12 November 1982, show that the applicant was awarded primary MOS 27E10 with secondary MOS 13B10.

10.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  7 June 1983 for two instances of failing to make work call formation, 15 July 1983 for missing physical training (PT) formation, and 21 July 1983 for writing a dishonored check.

11.  On 22 July 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty.

12.  The applicant's record further reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  3 August 1983 for personal hygiene, 2 September 1983 for two instances of missing formation and personal hygiene, 9 September 1983 for missing PT formation, 
12 September 1983 for missing PT formation, and 3 October 1983 for missing PT formation.

13.  On 4 October 1983, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for substandard performance.  The reason cited by the commander was the applicant's failure to respond to counseling, making a false statement, and reduction in grade. 

14.  On 4 October 1983, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant elected to submit a statement on his own behalf.

15.  The applicant submitted a statement on his own behalf in which he requested to be discharged.  He stated that his First Sergeant was going to put him in for promotion to E-4 and then he was told if he did not reenlist for a duty station and MOS that the first sergeant was not going to put him in for promotion.  He reenlisted for MOS 27E and after being in school for one month his wife asked him for a divorce.  After school he was assigned to Fort Hood, Texas and found out that his wife was living with a staff sergeant (SSG)/E-6.  The applicant states that he told their company commander, but nothing was done.  

16.  The applicant stated, in effect, that he tried to get help using his chain of command but nothing happened.  He started having problems with his health and things got worse in his unit and he was not being treated fairly by Soldiers over him who did not care about him or the personal problems he was going through.

17.  On 16 October 1983, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance, in the rank and pay grade of private first class (PFC)/ E-3.  On 
28 October 1983, the applicant separated from the service after completing 4 years, 6 months, and 6 days of creditable active service.

18.  The applicant's DD Form 214 with the period ending 28 October 1983 shows he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Good Conduct Medal, the Driver and Mechanic Badge with Driver-W Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  No other awards or decorations are shown among his authorized awards.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Records), shows no awards other than those shown on his 
DD Form 214.

19.  There is no evidence in the applicant's record that shows he received an award for driving Congressional Representatives at Fort Hood, Texas.

20.  The applicant's records contain a copy of a Boulder County, Colorado Order for Change of Name, dated 17 August 2001.  This document shows the applicant's request to have his name changed from D_____ E_____ P_____ to A_____ E_____ W___ III was granted.

21.  The Nijmegen March originated in 1909 with Dutch military efforts to increase the long distance marching and weight-carrying ability of infantry Soldiers and eventually evolved into a prestigious international annual competition.  The Nijmegen March is a four day march, held annually, and is centered on Holland's oldest town, Nijmegen.  The March is comprised of four consecutive days of marathon marching, each day 30 miles in length.  Individuals, civilian groups, police/emergency services, military and cadet teams participate from all over the world.  At the end of the four days of marching, each participant is awarded a medal to commemorate their participation in this annual event.  The Nijmegen March Medal is typically gold and green.

22.  Commemorative medals, including medals such as the Nijmegen March Medal, are not governed by Army Regulation 600-8-22.  Commemorative medals are made available by commercial resources and the Nijmegen March Medal is available only to participants of this March.  Since these medals are not governed by the applicable regulation, these commemorative medals are not authorized for entry on a Soldier's discharge or separation document.

23.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

24.  The same regulation provides that item 13 of the DD Form 214, will reflect decorations, medals, badges, citations and campaign ribbons awarded or authorized, for all periods of service.  Certificates of Achievement, Letters of Appreciation, and similar documents are not recorded on a Soldier's DD Form 214.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

26.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Military Medal of Gold and Green for his participation in the Nijmegen March should be added to his DD Form 214.  Evidence of record shows the he received a Certificate of Appreciation for completing the 100 mile march at Nijmegen.  He provided a copy of a medal similar to the one he was awarded in July 1980.  However, in accordance with Army Regulation 600-8-22 the Nijmegen March Medal is not an authorized award governed by Army Regulation 600-8-22.  Therefore, there is an insufficient basis for adding of the Nijmegen March Medal to the applicant's DD Form 214.

2.  The applicant's records show that he received one Article 15, received numerous general counseling’s, failed to repair numerous times, and he failed to maintain sufficient funds in his checking account.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.

6.  Although the applicant officially changed his name to A_____ E____ W___ III in 2001, he appropriately served in the Army and was discharged under the name of D_____ E_____ P_____.  While the applicant’s desire to have the records changed is understood, there is no basis for compromising the integrity of the Army’s records.  This Record of Proceedings will be filed in his military records so a record of his name change will be on hand.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regards to the applicant’s request for reconsideration for the Military Medal of Gold and Green to be placed on the DD Form 214, the evidence presented does not demonstrate the existence of a probable error or injustice.  This award is not authorized to be placed on the DD Form 214.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050005497, dated 2 February 2006.

2.  In regards to the applicant's request for the issuance of certificates with his new name, and the upgrade of his discharge, 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.




      _______ _xxxx______   ___
               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)                                         AR20080007315



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ABCMR Record of Proceedings (cont)                                         AR20080007315



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