IN THE CASE OF:	

		BOARD DATE:	16 June 2009  

		DOCKET NUMBER:  AR20090002382 


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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his correct rank and pay grade and to list all awards he earned.

2.  The applicant states, in effect, that he was promoted to private(PV2)/E-2 in July 2003 and his record shows he earned the Army Service Ribbon (ASR) which is not reflected on his DD Form 214.

3.  The applicant provides the indexed list of documents shown on his application in support of his request.

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 (RA) and entered active duty on 7 January 2003.  He was trained in, awarded, and served in military occupational specialty (MOS) 63H (Track Vehicle Repairer).

3.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 shows he earned the National Defense Service Medal and ASR during his active duty tenure.  Item 17 (Civilian Education and Military Schools) contains an entry confirming the applicant completed the 15-week track vehicle repair course at Aberdeen Proving Ground, Maryland, in 2003.  Item 18 (Appointments and Reductions) contains no entry showing the applicant was promoted above the rank of private (PV1)/E-1 while serving on active duty.  His Enlisted Record Brief (ERB) shows he attained the rank of PV1 on 7 January 2003, the date of his entry on active duty, and there is no entry showing he was ever advanced beyond this grade while serving on active duty.

4.  The applicant’s official military personnel file (OMPF) does not include documents showing he was advanced to PV2.  The OMPF does contain several documents dated between July and October 2003 which list his grade as PV2.  His OMPF also includes two DA Forms 4856-E (Developmental Counseling Forms), dated 18 August 2003 and 15 September 2003, respectively, which list his rank and grade as PV2/E-2.  These documents show that the applicant was counseled concerning his failure to follow instructions, his disrespect toward a noncommissioned officer, and regarding possible separation action.

5.  On 19 September 2003, a suspension of favorable personnel actions flag was imposed on the applicant based on his pending elimination action.  His rank on this document is listed as PV1.

6.  On 1 October 2003, the unit commander notified the applicant that he was initiating action to recommend that he be separated under the provisions of paragraph 5-17, Army Regulation 635-200 (Personnel Separations), by reason of "other designated physical or mental conditions."  The commander based his recommendation on the applicant’s depressive disorder which potentially interfered with his assignment to or his performance of military duty.  He also indicated that the applicant’s ability to function in a military environment was significantly impaired and recommended he receive an honorable discharge.

7.  On 17 October 2003, the separation authority approved the applicant’s discharge and directed that he receive a general, under honorable conditions discharge.  On 24 October 2003, the Wiesbaden Transition Center issued Orders 297-006 which directed the applicant’s discharge from active duty in the rank of PV1 on 1 November 2003.
8.  On 1 November 2003, the applicant was discharged from active duty under the provisions of paragraph 5-17, Army Regulation 635-200.  The DD Form 214 issued to him at that time lists his rank as PV1 in item 4a (Grade, Rate, or Rank) and his pay grade as E-1 in item 4b (Pay Grade).  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) does not include the ASR.  It does include the "Army Achievement Medal (15th Award)."

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4) states, in effect, that the active duty rank and pay grade at the time of separation will be entered in item 4a and item 4b of the DD Form 214.  Item 13 will list all awards for each period of active duty service earned through the period covered by the DD Form 214.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 5-5 contains guidance on award of the ASR.  It states, in pertinent part, that the ASR is authorized to be awarded to all members of the Active Army, Army National Guard, and U.S. Army Reserve in an active Reserve status.  It also states, in pertinent part, that the ASR will be awarded to enlisted Soldiers upon successful completion of their initial MOS producing course.  For those enlisted Soldiers assigned an MOS based on civilian or other service acquired skills, this ribbon will be awarded upon completion of 4 months of honorable service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the ASR should be included in item 13 of his DD Form 214 was carefully considered and found to have merit.  By regulation, members of the Active Army are authorized to receive the ASR upon successful completion of training, or upon being awarded an MOS.  The evidence of record confirms the applicant completed the track vehicle repairman course at Aberdeen Proving Grounds, Maryland, and was awarded MOS 63H.  Therefore, it would appropriate to add the ASR to the list of awards contained in item 13 of his DD Form 214 at this time.

2.  It is noted that the applicant's DD Form 214 appears to erroneously show he was awarded the Army Achievement Medal (15th Award).  There is no evidence of record to show he was awarded any award of the Army Achievement Medal.

3.  The applicant's contention that his DD Form 214 should reflect the rank and pay grade of PV2/E-2 in items 4a and 4b because he was promoted to that rank and pay grade in July 2003 was also carefully considered.  However, although his record contains multiple documents that list his rank and pay grade as 
PV2/E-2, his DA Form 2-1 and/or ERB, which are the source records for rank 
entries on the DD Form 214, contain no entries indicating he was ever advanced above the rank and pay grade of PV1/E-1 during his active duty tenure.

4.  Further, the applicant's OMPF is void of a document that authorized and/or announced his advancement to PV2/E-2.  Finally, his DD Form 214 lists his rank and pay grade as PV1/E-1 in items 4a and 4b.  Therefore, absent any documentary evidence confirming the applicant was ever advanced to PV2/E-2 by proper authority during his active duty tenure, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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 amending his DD Form 214 by adding the Army Service Ribbon to item 13 and by issuing him a correction to his DD Form 214 to reflect this change.

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 changing his rank and pay grade on his DD Form 214 to reflect private/E-2.



      _______ _   _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)                                         AR20090002382



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ABCMR Record of Proceedings (cont)                                         AR20090002382



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