IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100017204 


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.  the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar be removed from Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 19 February 1971;

	b.  his weapons qualification be removed from item 29 (Qualification in Arms) of his DA Form 20 (Enlisted Qualification Record);

	c.  the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar be removed from item 41 (Awards and Decorations) of his DA Form 20; and

	d.  removal of specification 1 of Summary Court-Martial Order Number 2, dated 17 June 1970.

2.  The applicant states:

	a.  he was classified as a conscientious objector by the U.S. Federal Court before he was inducted.  He states at no time during his term of military service did he receive instructions on the handling of weapons.  He did not physically hold, fire, or discharge a weapon; and

	b.  he has no knowledge of a Sergeant G__t or of the event mentioned in specification 1 of Summary Court-Martial Order Number 2, dated 17 June 1970.  He states he took no part in any judicial trial in regard to being told to report to the latrine as mentioned in the specification.

3.  The applicant provides no additional evidence in support of his application.

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 was inducted into the Army of the United States on 20 February 1969.  Item 14 (Conscientious Objector) of his DD Form 47 (Record of Induction) indicated he was classified a Class 1-A-O Conscientious Objector.  He completed basic combat training and advanced individual training and he was awarded the military occupational specialty of 73C (Pay Disbursing Specialist).

3.  On 17 June 1970, the applicant pled not guilty but was found guilty by a summary court-martial of two specifications of violation of Article 91 of the Uniform Code of Military Justice:

	a.  Specification 1 - having received a lawful order from Sergeant G__t to go in the latrine and help clean it up, failed to obey the same; and

	b.  Specification 2 - having received a lawful order from Staff Sergeant H__l to get into his fatigue uniform and get ready for detail, failed to obey the same.

4.  On 19 June 1970, the applicant was assigned to the 48th Medical Battalion, 
2nd Armored Division at Fort Hood, TX.  Headquarters, 2nd Armored Division Special Orders Number 211, dated 30 July 1970, announced the weapons qualifications and scores for 33 Soldiers with the M-16.  The applicant is listed with a score of 63, qualifying him for the Expert Marksmanship Qualification Badge with Rifle Bar.
5.  On 11 December 1970, the applicant pled not guilty but was found guilty by a special court-martial for failure to obey an order issued by First Sergeant B___r to report to Kitchen Police.

6.  Item 29 of the applicant's DA Form 20 shows he qualified as an expert with a score of 63 with the M-16 Rifle.

7.  Item 41 of the applicant's DA Form 20 shows he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

8.  On 19 February 1971, the applicant was released from active duty.  He had completed 2 years of active service that was classified as honorable.  Item 24 of his DD Form 214 shows he was awarded or is authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

9.  Department of Defense Instruction (DODI) 1300.06 defines a Class 1-A-O Conscientious Objector as a member who, by reason of conscientious
objection, sincerely objects to participation as a combatant in war in any form, but whose convictions are such as to permit military service in a non-combatant status.

10.  Army Regulation 600-8-22 (Military Awards) states 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 and a date to be determined.  

11.  Army Regulation 600-8-22 sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman -- in which an individual has qualified in a prescribed record course.  An appropriate bar is furnished to denote each weapon with which the individual has qualified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the National Defense Service Medal and the Expert Marksmanship Qualification Badge should be removed from his DD Form 214 and his DA Form 20.


2.  Eligibility for the National Defense Service Medal is based solely on honorable service and is authorized for all Soldiers who served during designated periods of time.  This medal does not denote participation as a combatant in war in any form.  The applicant served honorably during the period 1 January 1961 and 
14 August 1974.  Therefore, he is authorized this award and the entries on his DD Form 214 and DA Form 20 are correct.

3.  The orders awarding the applicant the Expert Marksmanship Qualification Badge for the M-16 show the score he attained on the range.  It is not likely he would have been mistakenly placed on a list of Soldiers and assigned a score high enough to qualify him as expert.  Without evidence to the contrary, it must be presumed the orders are correct.  Therefore, the entry on his 
DD Form 214 and the entries on his DA Form 20 concerning his marksmanship qualifications are correct.

4.  The applicant contends that specification 1 of Summary Court-Martial Order Number 2, dated 17 June 1970, contains incorrect information in regard to the charges.  He contends he has no knowledge of Sergeant G__t or the event mentioned.

5.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  

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)                                         AR20100017204



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ABCMR Record of Proceedings (cont)                                         AR20100017204



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