IN THE CASE OF:	  

		BOARD DATE:	    27 April 2010

		DOCKET NUMBER:  AR20090017667 


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 (Certificate of Release or Discharge from Active Duty) to show any awards and decorations to which he is entitled.

2.  The applicant states, in effect, he believes he is entitled to award of the Army Good Conduct Medal based upon the criteria of one year of honorable service.

3.  The applicant also states that as an Infantryman he was required to qualify with various types of weapons and contends he is entitled to marksmanship qualification badges along with the appropriate bars to denote each weapon with which he qualified including:  the TOW 2 (Heavy Anti-Tank Missile), M-16 (Rifle),
M-9 (Pistol), MK-19 (Grenade Launcher), M2 (.50 Caliber Machinegun), Hand Grenade, M203 (Grenade Launcher), and the M-240B (Machinegun).

4.  The applicant further states he was required to drive the HMMWV (High Mobility Multipurpose Wheeled Vehicle) for countless hours for which he should have been awarded the driver badge.

5.  The applicant provides no documentary evidence 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 records show he enlisted in the Regular Army on 23 June 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11H (Anti-Armor Weapons Infantryman).

3.  On 23 November 1998, the applicant's immediate commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure).  The commander stated the specific reason for this action was his alcohol rehabilitation failure.

4.  The commander informed the applicant that the final decision in his case rested with the approving authority.  If his separation was approved, his service would be characterized as either honorable or general under honorable conditions.  The commander advised the applicant of his rights to consult with counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive any or all of the aforementioned rights.

5.  On 23 November 1998, the applicant acknowledged receipt of the commander’s notification of intent to separate him under the provisions of Army Regulation 635-200, chapter 9 and the possible effects of a separation of this nature.  He also declined to submit a statement in his own behalf.

6.  On 23 November 1998, the applicant's immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 9.

7.  On 18 December 1998, the separation authority approved the applicant's discharge and directed issuance of a DD Form 256A (Honorable Discharge Certificate).

8.  On 20 January 1999, the applicant was discharged accordingly.  He completed 1 year, 6 months, and 28 days of active service.  The highest rank/grade he held at the time of discharge was private first class (PFC)/E-3.  Item 18 (Remarks) of his DD Form 214 states, in pertinent part, "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."

9.  Item 9 (Awards, Decorations, and Campaigns) of the applicant’s DA Form 2-1 (Personnel Qualification Record - Part II) and item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 only shows he was awarded or authorized the Army Service Ribbon.

10.  There are no orders or other documents in the applicant's personnel service records that show he was awarded or authorized any additional awards or decorations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse.  A member who has been referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required.  However, an honorable discharge is required if restricted-use information was used.

12.  Army Regulation 600-8-22 (Military Awards) provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying 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.  Individuals whose retention is not warranted are not eligible for award of the Army Good Conduct Medal.

13.  Army Regulation 600-8-22 sets forth the requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to 
indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

14.  Army Regulation 600-8-22 provides, in pertinent part for award of the Driver and Mechanic Badge.  To receive award, the individual must qualify for and possess a U.S. Government Motor Vehicles Operator’s Identification Card, occupy a duty position with the title of driver or assistant driver for a minimum of 12 consecutive months or during 8000 miles have no Army motor vehicle accident or traffic violation recorded on the Equipment Operator’s Qualification Record, and must perform satisfactorily for a minimum of one year as an active qualified driver instructor or motor vehicle driver examiner.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show award or authorization of any additional awards and decorations to which he may be entitled was carefully considered and determined to lack merit.

2.  Evidence shows the applicant was discharged prior to completing his first full term of service due to his alcohol rehabilitation failure.  Although he completed
1 year, 6 months, and 28 days of active service and issued an honorable discharge, he was involuntarily administratively discharged.  Since his retention in the Army was not warranted, he was not eligible for award of the Army Good Conduct Medal.

3.  The applicant's record is devoid of any evidence and he has not provided any evidence that shows he qualified with any weapon during his Army service.
Therefore, he is not entitled to correction of his record to show award of any marksmanship qualification badges.

4.  The applicant's record is devoid of any evidence and he has not provided any evidence that shows he fulfilled the requisite criteria for award of the Driver and Mechanic Badge with Driver-W Bar.  Therefore, he is not entitled to correction of his record to show award of this badge.

5.  The applicant's record is devoid of any evidence and he has not provided any evidence that shows he was awarded or authorized any additional awards or decorations.

6.  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)                                         AR20090017667



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ABCMR Record of Proceedings (cont)                                         AR20090017667



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