IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090005269 


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, reinstatement of the Basic Parachutist Badge and correction of his record to reflect this change.

2.  The applicant states, in effect, he never voluntarily requested termination of his airborne status.  He was medically exempt from jump status due to an injury he sustained to his elbow.  He also believes revoking his parachute badge was unjustified since he had completed 15 parachute jumps while in the Army.

3.  The applicant provides a four-page self-authored letter with 37 exhibits; an addendum to his self-authored letter, dated 1 April 2009; and a copy of his DD Form 214 (Report of Separation from Active Duty) dated 30 July 1974 in support of his 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 that he enlisted in the Regular Army 9 August 1971. He was trained in and awarded MOS 11B (Infantryman).  He was honorably released from active duty on 30 July 1974 after having served 2 years, 11 months, and 22 days.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he attended and completed the Army's 3 week Basic Airborne course at Fort Benning, Georgia on 28 January 1972.  Item 38 (Record of Assignment) shows that he was subsequently assigned to an airborne position at Fort Bragg, North Carolina from  3 February 1972 to 10 May 1973.

4.  Item 18 (Assignment Limitations) and Item 42 (Remarks) of the applicant's DA Form 20 show that, on 10 May 1973, he was permanently disqualified from airborne duty as a "deliberate terminator."

5.  The applicant provides Department of the Army, Headquarters, 82nd Airborne Division Special Orders 93, dated 14 May 1973, which show he was terminated from further Parachutist duties effective 10 May 1973. 

6.  The applicant also provides a statement of medical examination and duty status signed by proper medical authority, dated 2 March 1973, which shows that he dislocated his elbow on 1 March 1973.  The statement was further countersigned by the applicant's commander, on 14 April 1973, indicating that the injury was considered to have been incurred in the line of duty.

7.  The applicant's record contains no additional evidence to show he was medically exempt from his parachutist duties as a result of the injury he sustained on 1 March 1973.

8.  Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant's discharge, 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.

9.  Army Regulation 672-5-1 further states a parachutist badge may be revoked if the awardee is convicted by court-martial for refusal to participate in a parachute jump or initiates action which results in termination of his airborne status prior to completion of 18 consecutive months of airborne duty during their initial tour of airborne duty.

10.  The applicant provides a self-authored statement which essentially states that during the period March 1974 through August 1974 he was exempt, but his commander permanently terminated him from airborne status and he was reassigned to Germany.  He asked the commander to reverse his decision because he wanted to remain with the 82nd Airborne.  The commander responded that he would have to waive his medical exemption.  The applicant was unwilling to comply with this request because his arm was still stiff.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he had a medical exemption from parachutist duties and that his record should be corrected to reinstate the Parachutist Badge was carefully considered.  However, although the sincerity of the applicant's contention is not in question, there is insufficient evidence to support his claim.

2.  The applicant's DA Form 20 shows the applicant was a deliberate terminator, during his initial tour of airborne duty, prior to the completion of 18 consecutive months of airborne duty which resulted in the removal of the Parachutist Badge.  Therefore, lacking evidence to the contrary, there exists a presumption of regularity that what the Army did in this case was correct.

3.  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)                                         AR20090005269



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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