IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090000814 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 December 1993 be corrected to show a higher Reentry (RE) Code and that he held military occupational specialty (MOS) 94B (Cook) for 3 years and a communication MOS for 11 years and 4 months.  

2.  The applicant states, in effect, that his discharge was upgraded and his DD Form 214 should reflect an RE code of 1 or 2 to coincide with his upgraded discharge.  He further states that his DD Form 214 should accurately reflect MOS 94B for the years 1979 to 1983. 

3.  The applicant provides copies of his General Discharge Certificate; DD Form 214, issued on 29 December 1993, showing his characterization of service upgrade; DD Form 214 showing the original characterization of service; a copy of a General Affidavit from his daughter dated 28 June 2004; three training certificates; promotion orders; Army/ACE Registry Transcript; and two self authored statements. 

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 enlisted in the Regular Army on 27 June 1979 and served continuously until he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c for misconduct, commission of a serious offense on 29 December 1993.  The applicant was convicted in a civil court, in accordance with his plea, of indecent liberties with a child.  Records show he had completed 14 years, 5 months, and 1 day of creditable active service and had 31 days of lost time.  The DD Form 214 issued upon his separation shows he received a characterization of service of under other than honorable conditions, his separation code was JKQ, and the RE code was 3.

3.  On 26 November 2002, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.

4.  The applicant petitioned the ADRB a second time.  On 22 August 2003, the ADRB, after a personal hearing by the applicant, upgraded his discharge characterization of service to general under honorable conditions.  The ADRB found that the applicant's misconduct was partially mitigated by the length and quality of his service and his post service accomplishments.  The ADRB determined that the reason for discharge was proper and equitable and voted not the change it.  Subsequently, he was issued a new DD Form 214 which shows his characterization of service was changed to under honorable conditions, general discharge.  The applicant's separation code and his RE code remained unchanged.

5.  On 7 July 2004, the applicant petitioned the ABCMR requesting reinstatement to active duty or retirement with all due back pay, that his discharge be upgraded to fully honorable, that his RE code be changed, and that the narrative reason for his discharge be changed.  ABCMR assigned Docket Number AR20040004460 to this request.

6.  On 10 March 2005, the ABCMR considered Docket Number AR20040004460. The ABCMR determined that there was insufficient justification to warrant granting the applicant reinstatement to active duty or retirement, upgrading his discharge to fully honorable, changing his RE code, changing the narrative reason for his separation, or granting him back pay and allowances.   
7.  On 20 March 2006, the applicant petitioned the ABCMR requesting that his RE code be changed from RE code 3 to RE code 2.  He further stated that he asked the ADRB during his personal hearing to change his RE code.  The ABCMR assigned Docket Number AR20060005801 to this request.

8.  On 30 November 2006, ABMCR staff reviewed Docket Number AR2006005801 and determined that his application for reconsideration of his RE code was not received within one year of the ABCMR's original decision.  More than 1 year had elapsed since the Board considered the applicant’s case and there was no substantial relevant evidence submitted that shows fraud, mistake in law, mathematical miscalculation or manifest error.  Nor had the applicant shown that there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision that meets the criteria set forth in Army Regulation 15-185 (Army Board for Correction of Military Records).  Therefore, the applicant had exhausted relief through the ABCMR for reconsideration of his RE code, and he was told to seek relief in a court of appropriate jurisdiction. 

9.  On 20 June 2007, the applicant petitioned the ABCMR a third time requesting reconsideration of his RE code.  ABCMR Docket Number 20070009263 was assigned.  

10.  On 24 July 2007, the ABCMR staff determined that ABCMR Docket Number AR20060005801 was the final administrative action taken concerning the applicant's request to change his RE code.  

11.  Item 11 (Primary Specialty) of the applicant's DD Form 214 shows that he served in MOS 31D3O (Mobile Subscriber Equipment Transmission System Operator) for 1 year and 10 months; MOS 31M3O (Multichannel Communications System Operator) for 1 year and 10 months; and MOS 94B1O (Food Service Specialist) for 14 years and 4 months.  

12.  The applicant's DA Form 2-1 (Personnel Qualification Record), Item 6, shows that he was awarded MOS 94B on 26 September 1979 and MOS 26Q (Tactical Satellite Microwave Systems Operator) on 23 February 1983.

13.  Headquarters, U. S. Army Signal Center and Fort Gordon Orders Number 
219-122 dated 29 October 1982 awarded the applicant primary MOS 26Q20 and secondary MOS 94B20.  This same order withdrew primary MOS 94B20.  The effective date of the MOS change noted on this order was 23 February 1983.  

14.  Headquarters, XVIII Airborne Corps and Fort Bragg Orders Number 76-6 dated 16 March 1992 awarded the applicant primary MOS 31D, secondary MOS 31M, and additional MOS 94B.  The effective date of the order for the MOS change was 2 May 1992.  The reason for the MOS change as stated on Order Number 76-6 was the applicant successfully completed New Equipment Training (NET) and was reclassified in accordance with Army Regulation 600-200 (Enlisted Personnel). 

15.  In the applicant's personal statement dated 20 November 2008, he said he served as a cook from (an unknown date) in 1979 to (an unknown date) in 1983, and then he changed his MOS and served in signal communications until his release from active duty.  The applicant provided three certificates of training which show he completed the following training:

     a.  U. S. Army Training Center and Fort Jackson which shows he successfully completed the Food Service Specialist Course for MOS 94B on 26 September 1979;

     b.  U. S. Army Signal Center and Fort Gordon which shows he successfully completed the Tactical Satellite/Microwave Systems Operator Course for MOS 31Q20 from 10 July 1990 to 7 September 1990; and 

     c.  Department of the Army Certificate of Training which shows he successfully completed 136 hours of training as a Mobile Subscriber Equipment (MSE) Transmission System Operator at Fort Bragg from 20 April 1992 to 6 May 1992.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.  Since the applicant's second request to change his RE code was submitted over one year after the ABCMR's original decision, it will not be further addressed in these proceedings. 

17.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

18.  Army Regulation 635-5 (Separation Documents) provides, in pertinent part, for the entry of the primary MOS served in for at least 1 year in Item 11 of the DD Form 214, to include for each MOS the number of years and months served.  For time determination 16 days or more count as a month.  Time spent in basic training and advanced individual training are not counted.   The U. S. Army Human Resources Command has clarified that the term "served in" means "awarded" and not "worked in."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 with a separation date of 29 December 1993 should be corrected to show that he held MOS 94B for 3 years and a communication MOS for 11 years and 4 months.  

2.  The evidence of record shows that the applicant held MOS 94B1O for          14 years and 5 months; MOS 31D3O for 1 year and 10 months; and MOS 31M3O for 1 year.  This record validates the entries on the applicant's DD Form 214.  As such, the applicant has not satisfactorily shown that an administrative error exists on his DD Form 214 concerning his primary MOS and length of service served in his primary MOS.

3.  In view of the foregoing, there is an insufficient basis to change the applicant's MOS and time served in his primary MOS on his DD Form 214.  

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)                                         AR20090000814



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ABCMR Record of Proceedings (cont)                                         AR20090000814



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