IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100017033 


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 the narrative reason for discharge as hardship; to show his military occupational specialty (MOS) as 14S1O (Avenger Crewmember); and to show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

2.  The applicant states, in effect, that he never held MOS 11B (Infantryman); but did hold MOS 14S.  He also contends he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant further states that the narrative reason for his discharge should be changed because:

	a.  his mother was raped, cut into pieces, and buried beneath a bridge in Oklahoma City;

	b.  he went crazy when he was informed of his mother's demise;

	c.  a corporal in his unit gave him permission to go home and take care of the matter but never informed the chain of command, resulting in his under other than honorable conditions discharge;


	d.  the Army Discharge Review Board (ADRB) upgraded the characterization of his discharge to under honorable conditions but failed to consider sworn statements that were included with his application; and

	e.  he does not know who to turn to for the help he needs.

4.  The applicant provides a copy of his Department of Veterans Affairs (VA) rating decision dated 26 October 2010.

CONSIDERATION OF EVIDENCE:

1.   The evidence of record shows that:

	a.  on 21 May 1997, the applicant enlisted in the Regular Army;

	b.  Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar effective 2 July 1997 and with the Grenade Bar effective 10 July 1997; and

	c.  Orders 230-86, Fort Bliss, Texas, dated 18 August 1997, awarded the applicant MOS 14S1O, effective 10 October 1997, or upon completion of Course Number 38-97, 14S1O.

2.  On or about 30 April 1998, charges were preferred against the applicant for being absent without leave (AWOL) from on or about 17 March to 30 April 1998.

3.  On 7 May 1998, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. 

4.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 


discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

5.  On 19 June 1998, the separation authority approved the applicant’s request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

6.  On 24 July 1998, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had completed 1 year and 20 days of creditable active service with 44 days of time lost.

7.  On 22 March 2010, the applicant personally appeared before the ADRB to plead his case for an upgrade of his discharge.  The ADRB Case Report and Directive, dated 29 March 2010, states:

	a.  a careful review of all the applicant's military records, and the issue and documents [unidentified] submitted with the application, resulted in no mitigating factors that would merit an upgrade of his discharge;

	b.  the ADRB determined the characterization was too harsh based on his post service accomplishments in the medical field;

	c.  the ADRB recommended an upgrade of the applicant's discharge to under honorable conditions; and

	d.  the ADRB determined that the reason for his discharge was proper and equitable and voted not to change it.

8.  The President, ADRB approved the ADRB recommendation and directed the applicant be issued a new DD Form 214 showing his characterization of service as General, Under Honorable Conditions; no change to the [Narrative] Reason; and no change to the Reentry (RE) Code.

9.  The applicant's DD Form 214, issued at the direction of the ADRB, incorrectly shows in Item 11 (Primary Specialty) his MOS as 11B1O 00 INFANTRYMAN -- 0YRS - 0 MOS; and in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Marksmanship Qualification Badge with Rifle Bar//Marksman Marksmanship Qualification Badge with Grenade Bar.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board 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.

11.  The VA Rating Decision provided by the applicant granted him a service connected physical disability for tinnitus, rated at 10 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the narrative reason for discharge as hardship; to show his MOS as 14S1O; and to show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

2.  The evidence of record clearly shows that the applicant requested and was granted a discharge in lieu of trial by court-martial.  Furthermore, the ADRB reviewed his discharge and upgraded his characterization based on his post service accomplishments.  The ADRB also determined that the reason for his discharge was both proper and equitable.

3.  The applicant's contention that the ADRB did not consider certain sworn statements cannot be verified.  The ADRB Case Report and Directive states that the applicant's application and its attached documents were considered.  However, the report does not provide specific identification of those attachments.

4.  In the absence of evidence to the contrary, it is presumed that the ADRB proceedings were conducted in accordance with law and regulations and that all available evidence was considered.  Furthermore, it is noted that the applicant had personally appeared before the ADRB and should have had ample opportunity to present all of his evidence, to include any sworn statements. 

5.  The applicant has not provided any documentary evidence with this application showing that the circumstances surrounding his AWOL and subsequent discharge were the direct result of his mother's demise.  Furthermore, there is no available evidence showing that his chain of command knew about the incident or that anyone in his chain of command had acted improperly toward him.

6.  In view of the above, the applicant's request to change the narrative reason for his discharge should be denied.

7.  The applicant's contention that he had qualified as a sharpshooter with his rifle is not supported by any documentary evidence.  However, the evidence of record clearly shows that he had qualified as a marksman and his DD Form 214 should be corrected to show this qualification.

8.  The applicant's contention that he held MOS 14S is found to have merit.  Accordingly, his DD Form 214 should be corrected to show this MOS.

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:

	a.  deleting from Item 11 of his DD Form 214 the entry 11B1O  00 Infantryman -- 0 YRS-0 MOS;

	b.  deleting from Item 13 of his DD Form 214 the entry Marksmanship Qualification Badge with Rifle Bar// Marksman Marksmanship Qualification Badge with Grenade Bar;

	c.  showing in Item 11 of his DD Form 214 the entry 14S1O, Avenger Crewmember, 0 Years, 10 months; and

	d.  adding in Item 13 of his DD Form 214 the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars.

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 changing the narrative 


reason for his discharge or showing he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.



      ____________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)                                         AR20100017033



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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