IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090010825 


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 he be awarded the Good Conduct Medal and that his records be corrected to show he was advanced to the rank and pay grade of specialist/E-4.

2.  The applicant states, in effect, that on or about 1 April 1971, he was recommended for advancement by his section chief and the recommendation was denied.  He states that he was told he did not have enough time in the pay grade of E-3 to be advanced to the pay grade of E-4.  He states that on or about 1 May 1971, while performing temporary duty at the golf course, he was again recommended for advancement by a master sergeant and that the recommendation was again denied.  At that time, he was told he would not be advanced over someone who had been in the gun section.  Additionally, he was told after he returned to his section, in the fall, he would be considered for advancement after he spent a few months in the gun section.  

3.  The applicant states that he was reassigned to the gun section on or about 1 September 1971 and that he was subsequently transferred and discharged under the early release program, prior to being advanced.  He states that as a result of these events, he was furnished an RE (reenlistment) code of RE-3C.  He states that considering he was the only man in his unit who attended college part-time and passed the tests to qualify for Officer Candidate School and Warrant Officer Flight Training, he finds it hard to accept that he was furnished an RE code of RE-3C, which implies that he was incompetent.  He states that he seeks no monetary compensation for back pay if his advancement is granted and that he waives any present or future claims pertaining to this issue.

4.  The applicant provides an undated letter addressed to the Army Review Boards Agency.

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.  On 8 September 1970, the applicant was inducted into the Army of the United States in Kansas City, Missouri.  He successfully completed training and was awarded military occupational specialty 13A (Cannoneer).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was absent without leave (AWOL) from 18 October through 25 October 1970.  His DA Form 20 shows he was awarded the National Defense Service Medal.  The DA Form 20 also shows he was awarded both the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar in Special Orders Number 321, dated 
17 November 1970.  These badges are not shown on his DD Form 214.

4.  The applicant was advanced to pay grade E-2 on 8 January 1971 and to pay grade E-3 on 12 March 1971 which is the highest grade that he attained.

5.  On 21 March 1972, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 and Department of the Army Message 102035Z, dated December 1971, due to early release for other good and sufficient reasons when determined by the Secretarial Authority.  He was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

6.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was furnished at the time of his REFRAD shows he was awarded the National Defense Service Medal and he was assigned an RE Code of RE-3C.  It does not show any lost time.  
7.  A review of the applicant's records shows that his conduct and efficiency ratings were excellent while he was in the Army.  There is no evidence in his records of any court-martial convictions, personnel actions or statements that would justify disqualification for award of the Good Conduct Medal.  

8.  There is also no evidence the applicant was ever advanced to pay grade E-4, recommended for advancement to pay grade E-4, or denied advancement to pay grade E-4.

9.  Army Regulation 672-5-1 (Military Awards) in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.   Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-13 at the time, stated advancement to pay grade E-4 was not mandatory.  Commanders could, without constraint, advance service members who had completed 24 months time in service and 6 months time in grade.  A waiver of 3 months time in grade was authorized.  To recognize outstanding performance, commanders could advance service members to pay grade E-4 upon completion of 12 months time in service and 3 months time in grade.  The number of service members that could be given such accelerated advancement was restricted.

11.  Army Regulation 600-200 stated that to preclude reentry into the Army of personnel denied reenlistment in accordance with this regulation, the DD Form 214 of individual separated will be coded RE-3C and Army Regulation 600-200, chapter 4 applies.  Chapter 4 (Qualitative Management) established policy and prescribed certain procedures for denying reenlistment to enlisted personnel who 
were determined to be non-progressive and/or nonproductive.  The procedures contained in this chapter were in addition to those available to the local commander in Army Regulation 201-280. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Good Conduct Medal and that his records should be corrected to show he was advanced to pay grade E-4.

2.  The applicant's contentions were considered.  However, based on the information contained in his official records, it appears the applicant does not qualify for the award of the Good Conduct Medal.  While his records show he had “excellent” conduct and efficiency ratings and his records are void of any court-martial convictions, personnel actions or statements of justification, they also show he had 8 days of AWOL.  Therefore, it is reasonable to presume that what the Army did in his case (that is, not awarding him the Good Conduct Medal) was correct.

3.  The applicant is not entitled to a correction of his records to show that he was advanced to pay grade E-4.  In accordance with the applicable regulation, advancement to pay grade E-4 was not mandatory.  Commanders could, without constraint, advance service members who had completed 24 months time in service and 6 months time in grade.  A waiver of 3 months time in grade was authorized.  To recognize outstanding performance, commanders could advance service members to pay grade E-4 upon completion of 12 months time in service and 3 months time in grade.  The number of service members that could be given such accelerated advancement was restricted.

4.  Advancement to the pay grade of E-4 was basically left to the discretion of the commander and the applicant has provided insufficient evidence to substantiate his contention that he should have been advanced prior to discharge or that the commander's decision not to accelerate his advancement was incorrect and/or unjust.  Accordingly, he is not entitled to have his records corrected to show he was advanced to pay grade E-4 while he was in the Army.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090010825



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ABCMR Record of Proceedings (cont)                                         AR20090010825



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