IN THE CASE OF:	

		BOARD DATE:	 17 December 2009 

		DOCKET NUMBER:  AR20090011790 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as sergeant, pay grade E-5, effective 1 April 1996; his military occupational specialty (MOS) as 18B2VS1; and all of his awards.  He also request correction of his DD Form 214 to show active duty credit for his 3 years while on the temporary disability retired list (TDRL).

2.  The applicant states that he has been trying for the past 13 years to have his military records corrected.  He has experienced a lack of cooperation from the Department of Defense, Department of Veterans Affairs, the Medical Review Board, and the U.S. Department of Justice.  Recently, he has taken initial steps, with an Army recruiter, to be placed back on active duty.

3.  The applicant provides, in support of his application, copies of his 
DD Form 214; DD Form 256A (Honorable Discharge Certificate); business card from an Army recruiter; DD Form 4 (Enlistment Contract), dated in 1988; DA Form 2173 (Statement of Medical Examination and Duty Status) for spider bite, dated in 1989; DD Form 4, dated in 1992; and DA Form 2173 for left knee injury, dated in 1993.

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 30 August 1988, the applicant enlisted in the Regular Army for 4 years.  He completed basic combat training, infantryman advanced individual training, and basic airborne training.  Accordingly, he was awarded MOS 11B1P.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the following:

	a.  that in January, 1989, the applicant was assigned for duty as a radio operator with the 508th Infantry Regiment, located at Fort Kobbe, Panama;

	b.  that on 1 May 1989, the applicant was advanced to private, pay grade E-2.  He was also advanced to private first class, pay grade E-3 on 1 September 1989;  

	c.  that on 17 May 1990, the applicant was reassigned as a track driver with the 1st Battalion, 29th Infantry Regiment, located at Fort Benning, Georgia;

	d.  that on 30 October 1990, the applicant was promoted to specialist, pay grade E-4;

	e.  that on 6 August 1992, the applicant was again assigned to Fort Kobbe, for duty as a rifleman with the 508th Infantry Regiment;

	f.  that on 14 May 1996, the applicant was reduced to private, pay grade E-1;

	g.  that on 14 May 1996, the applicant departed Panama enroute to the United States; and

	h.  that on 11 June 1996, the applicant was assigned as a patient to the Medical Holding Company, Fort Sam Houston, Texas.

4.  The applicant's available records do not contain any documentation authorizing his reduction in 1996 to pay grade E-1 or showing the circumstances surrounding this personnel action.  These records also do not contain any documentation showing that he was promoted to sergeant, pay grade E-5.
5.  On 23 October 1996, the applicant was retired and placed on the TDRL due to a physical disability (bi-polar disorder).  The applicant's DD Form 214 shows the following:

	a.  Item 4a (Grade, Rate or Rank): Private;

	b.  Item 4b (Pay Grade): E-1;

	c.  Item 11 (Primary specialty): 11B1P (Infantryman with parachutist qualification);

	d.  Item 12h (Effective Date of Pay Grade): 14 May 1996;

	e.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):  Army Commendation Medal, Army Achievement Medal with three Oak Leaf Clusters, Army Good Conduct Medal (two awards), National Defense Service Medal, Armed Forces Expeditionary Medal, Army Superior Unit Award, Joint Meritorious Unit Award, Army Service Ribbon, Overseas Service Ribbon (two awards), Combat Infantryman Badge, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle and Pistol Bars, and the Marksman Marksmanship Qualification Badge with Grenade Bar.

6.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the same awards as listed on his DD Form 214.

7.  Item 17 (Civilian Education and Military Schools) of the applicant's DA Form 2-1 shows that he completed the Infantryman Course and the Basic Airborne Course.  It does not show completion of any special forces training, or training for award of any additional skill identifiers (ASI's).

8.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 shows that he was promoted through the ranks to specialist, pay grade E-4 and then reduced to private, pay grade E-1 on 14 May 1996.

9.  Item 33 (Date Prepared, Reviewed, and Signed) of the applicant's DA 
Form 2-1 shows that he signed and dated the form on 22 July 1996.

10.  A DA Form 4980-18 (Department of the Army Certificate for Award of the Army Achievement Medal) filed in the applicant's official military personnel file (OMPF) shows that he was awarded the Army Achievement Medal for meritorious service during the period 20 June to 4 October 1996.

11.  Orders D149-16, U. S. Total Army Personnel Command, dated 5 August 1999, removed the applicant from the TDRL due to a permanent physical disability rated at 10 percent, effective 5 August 1999.  He was authorized to receive severance pay, if otherwise qualified.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), as in effect at the time, provided, in pertinent part, for advancement of Soldiers to pay grades E-2, E-3 and E-4.  Soldiers who had 6 months or more of active federal service and had been reduced to E-1 were eligible to advancement to E-2 on the date they regained promotable status.

13.  Army Regulation 611-201 (Enlisted Career Management Fields and Military Occupational Specialty) shows that MOS 18B2VS1 is a Special Forces sergeant skilled as a ranger with parachutist qualification who is also skilled as a TOW master gunner.

14.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  This regulation further provides that a DD Form 214 will not be issued to Soldiers removed from the TDRL.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 provides that the Board 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and grade, MOS, and awards, are incorrectly recorded on his DD Form 214.  He also contends that he should receive active duty service credit for his time on the TDRL. 

2.  The applicant's contention that he was promoted to sergeant, pay grade E-5, effective 1 April 1996, is not supported by any available evidence of record.






3.  The available evidence shows that the applicant was reduced to private, pay grade E-1, effective 14 May 1996.  The records do not show the reason or circumstances for this reduction; however, the applicant was aware of his reduction, as evidenced by his review and signature on his DA Form 2-1, dated 22 July 1996.  There is no evidence showing that he was subsequently advanced to any higher grade prior to his temporary disability retirement on 23 October 1996.

4.  The applicant contends that all of his awards were not shown on his 
DD Form 214, but he did not specify what was missing.  A review of the applicant's available records failed to show any awards that may be due him.

5.  It is noted that the applicant was awarded the Army Achievement Medal for meritorious service during his last five months on active duty.  This indicates that he was eligible to receive favorable personnel actions.  However, it appears that he was not advanced to private, pay grade E-2 at any time during this period.  If he was eligible to receive favorable personnel actions during this period, he should have been advanced to pay grade E-2 on the date he became promotable.   While the available evidence shows this inconsistency, it does not provide sufficient documentation to determine if an error was made.

6.  The applicant's available records show that he was trained and qualified as an infantryman with parachutist qualification.  He held MOS 11B1P indicating these skills.  However, there is no evidence showing that he was trained or otherwise qualified as a Special Forces Soldier, or that he had qualified as a TOW master gunner.

7.  The records show that he applicant was retired effective 23 October 1996 and placed on the TDRL.  Time spent on the TDRL is not active duty; therefore, it is not recorded on the DD Form 214. 

8.  In the absence of evidence to the contrary, it is presumed that what the Army did was accomplished in accordance with law and regulations applicable at the time.

9.  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 the aforementioned requirement.

10.  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)                                         AR20090011790





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ABCMR Record of Proceedings (cont)                                         AR20090011790



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