IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090003938 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show his primary military occupational specialty (PMOS) was an Air Defense Artilleryman qualified to operate Nike and Hercules missile systems.  He also requests correction of his DD Form 214 to show award of the Expert Marksmanship Qualification Badge with Grenade Bar and receipt of a letter of commendation.  The applicant further contends that his Reenlistment Code (RE Code) should not indicate that he was barred from reenlistment.

2.  The applicant states, in effect, that his DD Form 214 incorrectly shows his PMOS as 76S (Vehicle Materiel Supply Specialist) because he never either attended schooling or received proper training for the MOS.  He continues that he was trained to be an Air Defense Artilleryman at Fort Bliss, Texas, and was qualified to operate Nike and Hercules missile systems.  The applicant adds that there is no mention of his receipt of a letter of commendation or that he qualified as an expert with grenades.  He also states that he neither had nor has any intention to reenlist and does not understand why the RE Code on his DD Form 214 indicates that he is barred from reenlistment.  The applicant concludes that he does not agree with the statements made by the first sergeant or captain during the urinalysis crackdown during the period 1974-1976.

3.  The applicant provides copies of his DD Form 214, a letter of commendation, and his discharge orders as documentary evidence in support of this application.


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 record shows he enlisted in the Regular Army (RA) on 17 January 1974.  He completed basic combat and advanced individual training. Upon completion of advanced individual training, he was awarded MOS 16B (Hercules Missile Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank of private (PV1)/E-1.

3.  The applicant provides Headquarters, 3d Air Defense Artillery Battalion (Missile), the Air Defense Artillery Training Brigade, Fort Bliss, Texas, letter, dated 10 May 1974, Subject:  Commendation.  This letter shows the applicant was commended by the battalion commander for achieving the highest possible score on the Advance Physical Fitness Test conducted for his class on 1 May 1974.  The battalion commander indicated that a copy of this letter would be placed in the applicant's military 201 file [Military Personnel Records Jacket - United States Army].

4.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions during the period of 19 August 1974 through 31 October 1975.  The offenses for which the applicant received NJP included failure to go at the time prescribed to his appointed place of duty, absenting himself from his unit without authority on two occasions, possessing a smoking pipe containing residue of marijuana on three occasions, and possessing a controlled substance.

5.  A DA Form 2496 (Disposition Form), dated 17 March 1975, shows the applicant requested that his PMOS of 16B be withdrawn due to the fact that he was permanently disqualified for duty in a nuclear position under the provisions 
of Army Regulation 50-5 (Nuclear Surety).  He further requested that he be awarded PMOS 75D (Personnel Records Specialist) based upon the fact that he had been working in a military personnel office since 15 October 1974 and he had obtained a qualifying score for MOS 75D when tested on 11 February 1975.

6.  Comment 3 to the applicant's request, dated 4 April 1975, shows his request was disapproved due to the fact that MOS 75D was in an overage status world-wide.  The applicant was instructed to select three additional shortage MOSs that he had the potential to qualify for award as his PMOS through on-the-job training (OJT).

7.  Comment 4 to the applicant's request, dated 11 April 1975, shows the applicant requested consideration for MOS 76S, 76T (Aircraft Materiel Supply Specialist), or 76U (Communications Electronics Materiel Supply Specialist).

8.  Comment 5 to the applicant's request, dated 30 April 1975, shows the applicant was approved for reclassification to PMOS (T) [Temporary] 76S and he was reassigned to the 156th Maintenance Company in order to undergo OJT for the MOS.

9.  Headquarters, U.S. Army, Europe and Seventh Army, Special Orders Number 122, dated 2 May 1975, awarded the applicant PMOS (T) 76S and withdrew PMOS 16B, effective 30 April 1975.  The Special Instructions portion of these orders stipulated that upon successful completion of OJT, the prefix (T) would be removed from the applicant's PMOS.

10.  Item 6 (Military Occupational Specialties) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part ll) shows PMOS 16B was withdrawn and PMOS (T) 76S was awarded.

11.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows he was awarded or authorized to wear the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M16 Rifle).  This Item does not show award of the Expert Marksmanship Qualification Badge with Grenade Bar.

12.  Headquarters, U.S. Army Training Center, Fort Dix, New Jersey, Special Orders Number 7, dated 7 January 1976, relieved the applicant from active duty effective 7 January 1976 and transferred him to the U.S. Army Reserve (USAR) Control Group (Annual Training), effective 8 January 1976, to complete his remaining Reserve obligation.  These orders show the applicant's PMOS as 76S at the time of his separation.

13.  Item 10 (Reenlistment code) of the applicant's DD Form 214 shows his RE Code as 1b.  Item 16a (Primary Specialty Number and Title) shows his PMOS as 76S with an effective date of 30 April 1975.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized to wear the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M16 Rifle).  This Item does not show award of the Expert Marksmanship Qualification Badge with Grenade Bar.

14.  The applicant provides Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, Orders, dated 19 December 1979, which show he was honorably discharged from the USAR Control Group (Annual Training), effective 16 January 1980.  These orders show the applicant held the rank of private (PV2)/E-2 and MOS 76D (Materiel Supply Specialist) at the time of his discharge.

15.  Aside from the narrative descriptions of the applicant's violations of the UCMJ shown on the records, his available military personnel record is void of any statements from his first sergeant and/or captain rendered during a urinalysis crackdown during the period of 1974-1976.  Evidence shows that each time the applicant was subjected to NJP, he accepted the punishment and elected not to submit an appeal.

16.  A thorough review of the applicant's record failed to reveal any evidence that shows he was barred from reenlistment at any time.  

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents.  Section II provided for completion of the DD Form 214.  When completing Item 10, the preparer was required to enter the appropriate reenlistment code.  When completing Item 16a, the preparer was required to enter the MOS code, title, and date of award.  When completing Item 26, the preparer was required to enter the Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized for all periods of service as shown on the separating Soldier's DA Form 2-1.

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE Codes, including RA RE Codes.  RE Code 1b applies to "persons who have not been 
tested to verify PMOS during current term of service or were tested and had not received their test score at time of separation.  Persons assigned RE Code 1b were considered fully qualified to reenter the U.S. Army.

19.  Army Regulation 640-2-1 (Personnel Qualification Records), in effect at the time, provided that letters of commendation, certificates of achievement, and service stars would not be recorded on the DA Form 2-1.  Accordingly, these items were not recorded on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his PMOS was 16B at the time of his separation.  He also contends his DD Form 214 should be corrected to show award of the Expert Marksmanship Qualification Badge with Grenade Bar and receipt of a letter of commendation.  The applicant further contends that his RE Code should not indicate that he was barred from reenlistment.  Each of these contentions was carefully considered and determined to lack merit.

2.  Evidence shows that the applicant had numerous disciplinary infractions which resulted in his permanent disqualification for duty in his initial, school trained MOS of 16B.

3.  Evidence shows the applicant volunteered for and official orders awarded the applicant MOS (T) 76S and evidence shows he was reassigned to a unit in order to complete OJT which would result in the removal of the "T" prefix from his PMOS.  Therefore, Item 16a of the applicant's DD Form 214 was properly constituted at the time of his separation and requires no correction.

4.  There is no evidence in the applicant's service personnel records that show he ever completed OJT or took the Skills Qualification Test (SQT) for MOS 76S prior to his separation.  RE Code 1b was the appropriate code to be entered on his DD Form 214.  Therefore, Item 10 of the applicant's DD Form 214 was properly constituted at the time of his separation and requires no correction.

5.  The applicant's record is void of any indication that he was barred from reenlistment.  Therefore, there is no need to modify his existing record to show that he is not barred from reenlistment.

6.  There is no evidence in the applicant's service personnel records and the applicant did not provide sufficient evidence showing that he was either awarded 
or entitled to be awarded the Expert Marksmanship Qualification Badge with Grenade Bar.  Therefore, he is not entitled to have his record corrected to show award of this qualification badge.

7.  Aside from the narrative descriptions of the applicant's violations of the UCMJ, the applicant's record is void of any statements from his first sergeant and/or captain rendered during a urinalysis crackdown during the period 1974-1976.  Evidence shows that each time the applicant was subjected to NJP, he accepted the punishment and elected not to submit an appeal.  Additionally, the applicant has failed to specify which comments he disagrees with or provided any evidence disputing them.

8.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his request.

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)                                         AR20090003938



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003938



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1