IN THE CASE OF:	  

		BOARD DATE:	       3 March 20093

		DOCKET NUMBER:  AR20080018512 


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 that his records be corrected to include all of his military training, duty assignments, and military occupational specialties (MOS). 

2.  The applicant states, in effect, the following:

	a.  neither of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) include notations of his military duties, assignments, or stations;  

	b.  he has no true 201 file (Official Military Personnel File [OMPF]) only a "dummy" file that was made to replace his original file and that there is no file for his first period of service;  

	c.  his records appear to show that he had 6 months of confinement in 1979 when in fact he had none;

	d.  there is an error in his time in combat during which he qualified for award of the Combat Infantryman Badge (CIB).  All of his missions, while stationed in Panama, were covert and records were deliberately not kept.  The "CIF [abbreviation unknown]" notation should be "CIB"; and 

	e.  he is finding it extremely hard to prove his correct military occupational specialty (MOS).  

3.  The applicant provides, in support of his application, a supplement self-authored letter, dated 22 December 2008; copies of two DD Forms 214; a "Long Range Recon Platoon" certificate; an 82nd Airborne Division certificate, and a response letter to the applicant from the Director, Center for Unit Records Research, dated 27 September 2004.

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 applicant's OMPF does not contain any documentation from his first period of active duty service, except the DD Form 214 with an ending date of
9 September 1978.

3.  The DD Form 214 shows he entered active duty on 10 September 1975, served in the MOS 76Y (Unit/Organization Supply Specialist), was advanced to pay grade E-4, and honorably released from active duty on 9 September 1978.  His awards are listed as the Parachutist Badge and the Expert Marksmanship Qualification Badge with Pistol and Rifle Bars.

4.  The applicant enlisted, as an E-4, on 31 October 1978 under the Delayed Entry Program (DEP).  His enlistment contract shows he enlisted for MOS 11B (Infantryman), with an area of choice of Panama.  He entered active duty on
5 December 1978 and was assigned duty in Panama.

5.  On 13 March 1980, a summary court-martial found the applicant guilty of disobeying a lawful order from a commissioned officer, disobeying a lawful order from a noncommissioned officer (NCO), being disrespectful in language and deportment towards an NCO, and assaulting an NCO.  His sentence was reduction to private (PV1)/E-1, forfeiture of $305.54 pay per month for one month, and confinement for 30 days.  On 14 April 1980, the sentence to forfeiture of $305.54 pay per month for one month was amended to $296.00 pay per month for one month.

6.  A 5 August 1980 QMFL Form 684 (Record of Informal/Formal Counseling), completed by the unit commander, shows that the reason for the counseling session was the applicant's request for discharge.  The commander indicated that the applicant stated he had prior service but during his current enlistment he had been given nothing but "make work" and he didn't want to "play the game anymore."  The commander further stated that with the applicant's prior service, it was hard to believe he was having trouble adjusting to military life; however, the unit would work with him to assist him to adjust.

7.  The applicant's second DD Form 214, with an ending date of 23 September 1980, shows he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 13-4c, by reason of unsuitability – apathy, defective attitudes or inability to expend effort constructively.  He had 1 year, 8 months, and 27 days of creditable service during this period with 22 days of lost time.  There are no awards or decorations noted as having been awarded during this period.  His MOS is noted as 11B "Long Range Patrol."

8.  The available DA Form 2-1 (Personnel Qualification Record) was not well maintained.  It provides the following pertinent information:

	a.  Block 21 (Time Lost) shows 22 days from 13 March 1980 through 3 April 1980 due to "IMPRMT [imprisonment]";

	b.  Block 35 (Record of Assignments), line 7, shows assignment in duty MOS 76Y, principal duty as an Armorer/Unit Supply Specialist with Headquarters and Headquarters Company, 4th Battalion, 10th Infantry Regiment.  There are what appear to be date entries of "7901" and "7909" in the non-duty days and non-rated days columns with two entries in the Type Report column of "INT [initial]" and "CNF."  The "CNF" entry is in a different type face from the rest of the entry but consistent with later entries;  

	c.  Block 35, line 10, has an effective date of 13 March 1980; however, it shows no duty MOS; a principal duty of confinement; unit of assignment of the Installation Detention Facility (IDF), Ft. Clayton, Panama; and an entry of "PCS [permanent change of station]" in the type of report column; and 

	d.  Block 35, line 11, has an effective date of 29 March 1980; shows a duty MOS of 11B with a principal duty of "CNF/Trainee"; and "DY [duty]" as the type of report.

9.  Army Regulation 600-8-22 (Military Awards), paragraph 8-6, provides for award of the Combat Infantryman Badge.  Paragraph 8-6j specifies that for Panama (Operation Just Cause) from 20 December 1989 to 31 January 1990, individuals must have met the criteria in paragraphs 8-6b and c to be awarded the Combat Infantryman Badge.  These paragraphs state that there are basically 
three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific eligibility requirements are stated in paragraph 8-6c (1) through (4) and essentially require that an Army enlisted Soldier must be have an infantry or special forces specialty, must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  Finally, paragraph 8-6c(2) states:  “A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.”

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The entry at item 11 is to be the first 5 characters of the primary MOS code (MOSC), which includes the 3 characters of the MOS, the fourth character of skill and grade level in the MOS, and the fifth character of a special qualification identifier (SQI), if applicable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that the available records are dummy files and do not properly reflect his service.

2.  The applicant is correct in that there are no documents related to his first period of service currently available.  However, he has provided no documentation to show that the available records are "dummy" records.  

3.  The DD Form 214 does not now nor has it ever included notations of a Soldier's military duties, assignments, or stations.  His second DD Form 214 lists the proper MOSC assigned as recorded on the only available DA Form 2-1.

4.  The applicant did not serve in Panama during a period for which the Combat Infantryman Badge was authorized.  Further, a notation of award of the Combat Infantryman Badge would only appear on the DA Form 2-1 at block 9 (Awards, Decorations, and Campaigns), not in the assignments block.
5.  The notation on the DA Form 2-1 of "CNF" is in fact entered on the wrong line. The "CNF" entry should have been entered in the subsequent line entry with the effective date of 13 March 1980, the beginning period of his confinement as a result of his court-martial sentence.  Nevertheless, the DA Form 2-1 is only maintained for active Regular Army and Reserve Component Soldiers.  Therefore, there is no basis for making any corrections or changes to his inactive DA Form 2-1.

6.  Further, his period of lost time is properly noted at block 21 on the DA Form
2-1 and at item 29 (Dates of Lost Time This Period) on the DD Form 214 with an ending date of 23 September 1980.

7.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      __________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)                                         AR20080018512



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018512



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1