IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000837 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect:

* in block 13 that he was awarded the Army Service Ribbon (ASR), the National Defense Service Medal (NDSM), the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar
* in block 14 that he completed 8 weeks of basic combat training and 12 weeks of advanced individual training (AIT) in military occupational specialty (MOS) 54B (Chemical Specialist)
* in blocks 25, 27, and 28 that he received a more favorable separation authority, reentry eligibility (RE) code, and narrative reason for separation
* in block 19a that his correct mailing address be entered
* in block 19b that his mother's name be changed from Marina to Maria

2.  The applicant states:

* he earned the ASR because he successfully completed basic training prior to 1981
* he earned the NDSM because he was on active duty during the Global War on Terrorism
* he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar
* he passed 8 weeks of basic training and 12 weeks of AIT and that training should be reflected on his DD Form 214 in block 14 along with his Certification of Nuclear Contamination
* he was treated too harshly for one incident and was not afforded the opportunity to prove his innocence and thus should receive a more favorable separation authority, RE code and narrative reason for separation
* his mailing address should read "RR-XX, Box XXXX, Anasco, PR  00610"
* his mother's first name be corrected to read "Maria" instead of "Marina" in block 19b

3.  The applicant provides a 1-page attachment to his application and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 29 July 1979 and enlisted in the Puerto Rico Army National Guard (PRARNG) in the pay grade of E-3 on 10 April 2002 for a period of 8 years, training as a chemical operations specialist, an enlistment bonus, and participation in the student loan repayment program.

2.  He was ordered to initial active duty for training on 24 April 2002 and was transferred to Fort Leonard Wood, Missouri, for his one-station unit training.

3.  The facts and circumstance surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted DD Form 214 signed by the applicant which shows he was discharged under other than honorable conditions on 13 December 2002 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He had served 7 months and 20 days of total active service.

4.  His DD Form 214 issued at the time of his discharge shows in block 11 that he did not possess an MOS of any type for a year or more.  In block 13 it reflects that he had no awards.  In block 14 it reflects that he did not complete any military education courses.  In block 19a it reflects the mailing address after separation that was provided by the applicant and in block 19b it reflects that the first name of his nearest relative was "Marina."  In block 25 it reflects the separation authority as "Army Regulation 635-200, chapter 10."  In block 27 it reflects an RE code of "4" and in block 28 it reflects the narrative reason for separation as "in lieu of trial by court-martial."

5.  On 5 January 2005, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 26 August 2005, the ADRB determined that his discharge was both proper and equitable and voted to deny his request.  He again applied to the ADRB and was granted a personal appearance before that board in Washington, DC, on 27 July 2009.  After hearing all of the testimony and reviewing all of the available evidence (less the facts and circumstances surrounding his discharge) in the case, the board, in a 3-to-2 vote, voted to upgrade his discharge to a general discharge.  The board voted unanimously not to change the reason and authority for his discharge.  Accordingly, he was issued a new DD Form 214 reflecting that he was discharged under honorable conditions.

6.  A review of his official records failed to show orders awarding him an MOS or marksmanship qualifications and there are no completion certificates for his AIT or any other courses in his records.  However, his records do contain a birth certificate which shows that his mother's first name is "Maria" and that the individual listed in block 19b of his DD Form 214 is his mother.  Additionally, the address listed in block 19a is also listed as his official home of record address on his enlistment contract.

7.  Army Regulation 600-8-22 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 to a date to be determined.

8.  Army Regulation 600-8-22 shows that the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.

9.  Army Regulation 600-8-22 sets forth 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 qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the official military personnel file, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.  A DD Form 214 alone should not be the sole basis for recording a decoration.  This document may be used to initially enter a decoration; however, if the validity of the award on the DD Form 214 is questioned or challenged, the only acceptable proof of award of the decorations will be the order, letter, or memorandum which awarded the decoration.

11.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the mailing address after separation (block 19a) is the address provided by the Soldier at the time of separation.  Additionally, it provides that combat skills courses will not be entered on the DD Form 214.  The DD Form 214 serves as a snap-shot in time and reflects information as it exists at the time of separation.  Events/changes that occur subsequent to the date of the DD Form 214 will not be entered on the DD Form 214 at a later date.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Pertinent Army Regulations provide that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

14.  RE code 4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification.  The applicable regulations direct that an RE code 4 be issued for a SPD of KFS, which indicates separation in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty during a period that qualifies for award of the NDSM.  Accordingly, that award should be added to his records at this time.  Additionally, his mother's name in block 19b should be corrected to reflect the first name of "Maria."

2.  However, the applicant failed to show through the evidence submitted with his application and the evidence of record that he completed his AIT or any other courses, that he was awarded the Expert and Marksman Marksmanship Qualification Badges, and that he is qualified for award of the ASR.

3.  The applicant failed to show the address listed in block 19a is not the address he provided at the time of his discharge.  Accordingly, there is no basis to change his address at this time.

4.  Notwithstanding that the ADRB upgraded his discharge without knowing the facts and circumstances surrounding his discharge, in the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  Accordingly, the type of discharge directed and the reasons appear to be appropriate under the circumstances and he has failed to show that the reason and authority or the RE code are in any way incorrect and do not properly reflect the basis for his discharge.

6.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

7.  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 

____x____  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 showing that he was awarded the NDSM and by correcting his mother's first name in block 19b to reflect the first name of "Maria" instead of Marina, as currently reflected.

2.  The Board further determined 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 to adding awards of the ASR and marksmanship awards, adding military education courses, changing his mailing address after separation, and changing his narrative reason for separation, the separation authority, and his RE code.



      _____________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)                                         AR20100000837



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ABCMR Record of Proceedings (cont)                                         AR20100000837



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