IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20090000197 


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, correction of his records to show award of the Parachutist Badge.

2.  The applicant states, in effect, he was “jump” qualified and awarded the Parachutist Badge at Fort Benning, Georgia, on 14 February 1963; however, the badge is not recorded on his discharge document.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 21 April 1966.

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 military personnel records show he enlisted in the Regular Army on 27 August 1962 for a period of 3 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 111.07 (Light Weapons Infantryman).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 27 (Specialized Training), in pertinent part, shows he completed the 3-week Basic Airborne course on 15 February 1963.

   b.  Item 28 (Qualification in Arms), in pertinent part, shows he qualified Expert with the M-14 rifle on 4 April 1964.

   c.  Item 15 (Assignment Limitations) contains the entry “EM is a deliberate Abn term (deserter).  Not elig for further Abn tng or dy” (i.e., Enlisted Member is a deliberate Airborne termination based on deserter status and not eligible for further Airborne training or duty).

4.  The applicant’s military personnel records contain a DA Form 24 (Service Record).

   a.  Section 2 (Chronological Record of Military Service), in pertinent part, shows the applicant was assigned or attached, as follows:

   (1)  Headquarters and Headquarters Company, 2n Battalion (Airborne), 
327th Infantry, Fort Campbell, Kentucky, from 3 February to 8 April 1964;

   (2)  Company C, 15th Support Battalion, 4th Training Brigade, Fort 
Jackson, South Carolina, from 9 April to 29 May 1964;

   (3)  Training Company D, U.S. Army Training Center and School, Fort 
Gordon, Georgia, from 30 May to 17 September 1964; and

   (4)  Headquarters and Headquarters Company, 2nd Battalion (Airborne), 
327th Infantry, Fort Campbell, from 20 September 1964 to 14 January 1965.

   b.  Section 6 (Time Lost Under Section 6a, Appendix 2b, Manual for Courts-Martial and Subsequent to Date ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 1 day on 22 August 1964, AWOL for 29 days from 17 December 1964 through 14 January 1965, dropped from the 


rolls (DFR) of the Army (desertion) for 158 days from 15 January through
21 June 1965, and in civil confinement for 11 days from 9 November through
19 November 1965.

   c.  Section 9 (Medals, Decorations, and Citations), in pertinent part, shows the applicant was awarded the Parachutist Badge by Headquarters, U.S. Army Infantry Training Center, Fort Benning, Special Orders 35, dated 14 February 1963.  This item also shows, in pertinent part, the entry showing award of the Parachutist Badge is lined-through indicating it was deleted.

5.  The applicant’s military personnel records contain a copy of Headquarters,
Fort Ord, California, General Court-Martial Order Number 68, dated
10 September 1965, which documents the following charge, specification, pleas, findings, sentence, and action.

   a.  Charge I, Article 86, Uniform Code of Military Justice (UCMJ), with the Specification that the applicant, on or about 17 December 1964, without proper authority, absented himself from his organization, to wit:  Headquarters and Headquarters Company, 2nd Battalion (Airborne), 327th Infantry, located at Fort Campbell, and he remained so absent until he was apprehended on or about
21 June 1965.

   b.  The applicant entered a plea of guilty and was found guilty of Article 86.

   c.  On 29 July 1965, sentence was adjudged.  The applicant’s sentence was to forfeit all pay and allowances, to be reduced to the lowest enlisted grade of private (PV1)/E-1, and to be discharged from the service with a Bad Conduct Discharge.

   d.  On 10 September 1965, the convening authority approved only so much of the sentence as provided for bad conduct discharge, forfeiture of $82.00 per month for six months, and reduction to the grade of private (E-1), and ordered the sentence duly executed, but the execution of that portion adjudging bad conduct discharge was suspended for six months at which time, unless the suspension was sooner vacated, the suspended portion was to be remitted without further action.  The convening authority directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a board of review.  He also directed that the applicant be retained in the command pending completion of the appellate review.

6.  The applicant’s military personnel records contain a copy of United States Army Judiciary, Office of The Judge Advocate General of the Army, Washington, 
DC, In the Board of Review, U.S. Army, Before [Judges Names] Members, CM 413###, United States versus [Applicant], Decision, dated 15 November 1965.  This document shows the Board of Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that the findings of guilty and only so much of the sentence as provided for forfeiture of $55.00 pay per month for six months and reduction to the grade of private (E-1) should be approved, the same as thus modified was affirmed.

7.  The applicant’s military personnel records contain a copy of Headquarters, Fort Ord, General Court-Martial Order Number 90, dated 23 November 1965.  This document shows, in pertinent part, that so much of the sentence adjudged on 29 July 1965, in excess of the forfeiture of $55.00 pay per month for six months and reduction to the grade of PV1 had been set aside.  The findings of guilty and the applicant’s sentence as thus modified was affirmed pursuant to Article 66.  This order also shows that the applicant signed a “Request for Final Action” on 22 November 1965 and that the provisions of Article 71(c) having been complied with, all rights, privileges, and property of which the applicant had been deprived by virtue of that portion of the sentence set aside were ordered restored.

8.  The applicant's military personnel records contain a DD Form 214 that shows he entered this period of active duty on 27 August 1962 and was honorably discharged on 21 April 1966, in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with the separation program number (SPN) "201," based on expiration term of service.  At the time he had completed 3 years, 1 month, and 6 days of net active service this period.  Item 32 (Remarks), in pertinent part, shows the applicant had 188 days lost under Title 10, U.S. Code, section 972, on 22 August 1964 and from
17 December 1964 through 21 January 1965.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Expert Marksmanship Qualification Badge with (M-14) Rifle.

9.  Army Regulation 600-8-22 (Military Awards), in pertinent part, sets forth requirements for award of the basic Parachutist Badge.  Award of the basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School, or have participated in at least one combat parachute jump.


10.  Army Regulation 672-5-1 (Military Awards), dated 3 May 1961 and in effect at the time in question, provides that commanders authorized to award combat and special skill badges are authorized to revoke such awards.  It also provides, in pertinent part, any parachutist badge may be revoked when the awardee initiates, in his initial tour of airborne duty, action which results in termination of his airborne status prior to his completion of 18 consecutive months of airborne duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Parachutist Badge because he was “jump” qualified and awarded the Parachutist Badge at Fort Benning, on 14 February 1963.

2.  The evidence of record shows the applicant completed the 3-week Basic Airborne course and he was awarded the Parachutist Badge by Headquarters, U.S. Army Infantry Training Center, Fort Benning, Special Orders 35, dated
14 February 1963.  

3.  The evidence of record shows the applicant was assigned to Headquarters and Headquarters Company, 2n Battalion (Airborne), 327th Infantry, Fort Campbell, Kentucky, from 3 February to 8 April 1964 (i.e., a period of just over
2 months), and from 20 September to 14 January 1965 (i.e., a period of less than 4 months).

4.  The evidence of record shows the applicant was convicted by court-martial for violation of Article 86, UCMJ, based on his unauthorized absence from on or about 17 December 1964 to on or about 21 June 1965.

5.  There is no evidence of record that shows the applicant was assigned to an airborne unit in an airborne duty status subsequent to his return to military control on or about 21 June 1965.

6.  The evidence of record shows the applicant deliberately terminated his airborne status when he went AWOL on 17 December 1964 and was DFR as a deserter on 15 January 1965.  Thus, the evidence of record confirms that the applicant terminated his airborne status prior to completing 18 consecutive months of airborne duty and his records were properly annotated to delete the Parachutist Badge to indicate revocation of the badge.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records in this case.

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)                                         AR20090000197



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ABCMR Record of Proceedings (cont)                                         AR20090000197



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