IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090019810 


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) for the period ending 10 June 1980 to show his rank as captain (CPT).  He also requests correction of his DD Form 214 to show the award of the Army Commendation Medal (ARCOM) and the Sharpshooter Qualification Badge with Rifle Bar.

2.  The applicant states that the last highest rank he attained in the U.S. Army Reserve (USAR) was CPT, effective 10 June 1984.  He also states that there is no record of his award of the ARCOM or the Sharpshooter Marksmanship Qualification Badge with Rifle Bar on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, promotion memorandum, USAR discharge orders, ARCOM orders and certificate, and M-16 weapons qualification announcement.

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 was appointed as a second lieutenant (2LT)/O-1 in the Regular Army (RA) on 15 May 1977.  He was promoted to first lieutenant (1LT)/O-2 on 8 June 1979.   He was subsequently appointed as a first lieutenant (1LT) in the USAR to be effective upon his discharge from the RA.  He was honorably discharged from the RA on 10 June 1980.

3.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) of the applicant's
DD Form 214 shows 1LT/O-2.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Parachutist Badge.

4.  A DA Form 2496-1 (Disposition Form), dated 23 August 1977, shows the applicant qualified as a sharpshooter with the M16A1 rifle.

5.  Headquarters, 4th Infantry Division, Fort Carson, CO, Permanent Orders
97-5, dated 20 May 1980 and accompanying certificate shows the applicant was awarded the ARCOM for meritorious service during the period 30 December 1977 through 10 June 1980.

6.  Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the U.S. Code, dated 24 April 1984, shows that the applicant was promoted to CPT in the USAR, effective 10 June 1984.

7.  U.S. Army Reserve Personnel Center, St. Louis, Orders D-09-043303, dated 5 September 1984, show the applicant was honorably discharged from the Ready Reserve, effective 6 September 1984.

8.  Army Regulation 635-5 (Separation Documents) states that the DD Form 214 is a summary of a 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.

9.  Army Regulation 635-5 further states that for item 4a and 4b, enter active duty grade of rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant held the rank/grade of 1LT/O-2 at the time of his June 1980 discharge, which is properly noted on his DD Form 214.  He was not promoted to CPT/O-3 until 10 June 1984, four years after his date of separation on 10 June 1980.  Any subsequent promotions or achievements that occurred after his date of separation from active duty cannot be listed on this DD Form 214.  Therefore, there is no basis for granting this portion of the applicant's request.

2.  Permanent Orders 97-5 awarded the applicant the ARCOM.  Therefore, his DD Form 214 should be corrected to show this award.

3.  A DA Form 2496-1 certifies the applicant qualified as a sharpshooter with the M16A1 rifle.  Therefore, his DD Form 214 should be corrected to show this weapon qualification.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of his DD Form 214 the ARCOM and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains changing his rank/grade to CPT/O-3 on his DD Form 214.



      __________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)                                         AR20090019810



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ABCMR Record of Proceedings (cont)                                         AR20090019810



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