IN THE CASE OF:	 

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018827 


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 reconsideration of his earlier request to correct his records to show award of the Purple Heart with two Oak Leaf Clusters.  As new issues, he requests that his records be corrected to show military occupational specialty (MOS) 11B (Light Weapons Infantryman); correction of the weapons qualification badge from marksman to sharpshooter badge; and that the entry “Under Other Than Honorable Conditions” in item 38 of his DA Form 20 (Enlisted Qualification Record) be corrected to show he was issued a general discharge (GD).

2.  The applicant states that he was awarded three Purple Hearts and he refused the fourth award for wounds sustained during combat operations.  He contends that the files which documented his wounds for the Purple Hearts were removed and that he still has shrapnel in his right hip and in his neck.  He indicates that MOS 11B should be reflected in his records and that he earned the marksmanship qualification of sharpshooter with his rifle.  He also states that one form in his records shows his service is characterized as “Under Other Than Honorable Conditions.” 

3.  The applicant provides the following:

* congressional inquiry documentation
* a copy of United States Army Vietnam (USARV) Form 137R (Personnel Data Sheet) Copied from the Claims Folder Department of Veterans Affairs
* a DD Form 214 (Report of Separation from Active Duty)
* DD Form 257A (General Discharge Under Honorable Conditions Certificate)

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.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The Board previously considered and denied a petition from the applicant to award him the Purple Heart with two Oak Leaf Clusters on 14 August 2007 in (ABCMR Docket Number AR20070002431).  In view of the fact the applicant’s request for reconsideration was not received within one year of the ABCMR’s original decision, his request does not meet the criteria outlined above and will not be discussed further in these proceedings.

3.  The applicant’s request for correction of his records to show military occupational specialty (MOS) 11B, that he was awarded the Sharpshooter Marksmanship Qualification Badge, and the removal of the entry “Under Other Than Honorable Conditions” and adding the entry GD to item 38 of his DA Form 20 are considered new issues that warrant consideration by the Board.

4.  The applicant’s military records show that he enlisted in the Regular Army on
26 April 1966.  He completed training and was awarded the MOS of 63C (General Vehicle Repairman).  He was convicted by civil court for misconduct and issued an under other than honorable conditions discharge on 18 May 1971. 



5.  The applicant applied to the Army Discharge Review Board (ADRB) and the ADRB granted relief and upgraded his discharge to a GD under honorable conditions in April 1977.  

6.  Item 38 of the applicant's DA Form 20 shows he served in duty MOS 11B while in the RVN with the 2nd Battalion, 47th Infantry Regiment, 9th Infantry Division.  However, there are no orders awarding him an infantry MOS.

7.  On 14 August 2007, the ABCMR corrected the applicant's records to show award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

8.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, prescribed instructions for preparing and maintaining the DA Form 20.  It was applicable to all enlisted personnel on active duty and all Army Reserve enlisted personnel assigned to U.S. Army Reserve Troop program units. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be corrected to show he was awarded MOS 11B, that his Marksman Marksmanship Qualification Badge should be upgraded to the Sharpshooter Marksmanship Qualification Badge, and the entry “Under Other Than Honorable Conditions” should be removed from item 38 of his DA Form 20 was carefully considered but not supported by the evidence in this case.

2.  The applicant was discharged based on a conviction by civil authorities and issued an “Under Other Than Honorable Conditions” discharge.  Although his discharge was later upgraded by the ADRB, that upgrade is an insufficient basis on which to delete the entry in Item 38 of his DA Form 20, an obsolete form that was never maintained for discharged personnel. 

3.  The applicant’s DA Form 20 shows he served in duty MOS 11B but absent official orders awarding him MOS 11B, there is no basis to correct his records. 

4.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued on 11 April 2008 awarding him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Therefore, no further action is required. 



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)                                         AR20090018827



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ABCMR Record of Proceedings (cont)                                         AR20090018827



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