IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100001196 


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:

   a.  correction of item 20 (Highest Education Level Successfully Completed) on his DD Form 214 (Report of Separation from Active Duty) to show he completed 12 years instead of 11 years of high school;
   
   b.  compensation for hindered employment opportunities and loss of gainful earnings for 30 years; and
   
   c.  copies of documentation indicating the extent of injuries a sergeant sustained from him during an alleged assault.
    
2.  The applicant states:

* one of the primary reasons he decided to enter the military was to complete his high school education and having been given that opportunity he is forever grateful
* for 30 years he has been providing perspective employers with a copy of his DD Form 214 and he was not aware of the oversight/discrepancy
* he never received his high school transcripts from Big Bend Community College until after 28 December 1983 and he did not receive his high school diploma until 3 August 2009


* due to the pain and suffering he incurred he is seeking compensation for hindered employment opportunities and loss of gainful earnings for
30 years
* he received an Article 15 for allegedly assaulting a sergeant
* this alleged accusation precluded him from considering reenlistment and adversely affected his past military career and civilian career pursuits

3.  The applicant provides a copy of:

* his DD Form 214
* correspondence letters
* his school transcripts
* his high school diploma, dated April 1976
* his medical records
* a letter from the Social Security Administration
* a "Statement of Prior Events (in hopes of setting the record straight)," dated 26 February 2010 

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 now requests compensation for hindered employment opportunities and loss of gainful earnings for 30 years due to pain and suffering he incurred.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  The ABCMR considers individual applications that are properly brought before it and in appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR decides cases on the evidence of record; it is not an investigative body.  The ABCMR 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.  The Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.  The Army may not pay attorney's fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, U.S. Code, section 1552.  The Board is not authorized to compensate for pain, suffering, or consequential damages.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 7 December 1973 for a period of 3 years.  He served as an armor crewman and he was discharged under honorable conditions (general discharge) on 18 August 1976 for unsuitability.

4.  Item 20 of the applicant's DD Form 214 shows he completed 11 years of secondary/high school.

5.  Item 17 (Civilian Education and Military Schools) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he completed 11 years of civilian education at Epstein High School.

6.  The applicant provided a high school diploma, dated April 1976, that shows he satisfactorily completed a program of studies in compliance with high school graduation requirements through Big Bend Community College at Moses Lake, WA.

7.  The applicant's service personnel records do not contain an Article 15 or any other documentation pertaining to an assault.

DISCUSSION AND CONCLUSIONS:

1.  The high school diploma provided by the applicant is accepted as sufficient evidence in which to correct item 20 of his DD Form 214 to show he completed 12 years of high school.

2.  The applicant contends he received an Article 15 for assaulting a sergeant and he requests copies of documentation indicating the extent of injuries the sergeant sustained from the alleged assault.  However, there is no evidence of record and the applicant provided no evidence which shows he received an Article 15 or any other disciplinary action for an assault.  Therefore, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  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 deleting from item 20 of his DD Form 214 the entry "11" and replacing it with the entry "12."

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 to providing documentation on an alleged assault upon a sergeant.



      _______________________
               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)                                         AR20100001196



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)