IN THE CASE OF:
BOARD DATE: 16 August 2011
DOCKET NUMBER: AR20110001551
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 his Purple Heart and Army Commendation Medal (ARCOM) certificates be corrected to show his rank as corporal instead of specialist. He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show award of the Valorous Unit Award (VUA).
2. The applicant states he was an inpatient at Walter Reed and did not realize the rank was wrong on his award certificates. As for the VUA, he read that his unit was awarded this honor.
3. The applicant provides an excerpt from a periodical and his Purple Heart and ARCOM certificates.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 27 December 1988 and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).
3. His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of specialist on 1 February 1990. This form does not show he was laterally appointed to the rank of corporal. The applicant's automated Personnel Qualification Record, Part I, shows his rank as specialist.
4. He served in Saudi Arabia while assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 41st Infantry Regiment as a fighting vehicle infantryman during Operation Desert Storm from 7 January to 5 March 1991.
5. He was then medically evacuated. All available documents up to this point show his rank as specialist.
6. The applicant underwent a medical evaluation board (MEB) and physical evaluation board (PEB) which resulted in him retiring on 11 May 1992 and placement on the Temporary Disability Retired List (TDRL) the following day. All documents pertaining to the applicant during his processing under the disability evaluation system (DES) show his rank as corporal, including his DD Form 214 and orders assigning him to the TDRL.
7. There are no orders in his records laterally appointing him from specialist to corporal.
8. The Purple Heart and ARCOM certificates provided by the applicant both show his rank as specialist.
9. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, paragraph 2-43, Lateral appointment of specialist to corporal, stated specialists could be laterally appointed to corporal without local selection board action provided they were assigned to an authorized noncommissioned officer (NCO) position.
10. The Human Resources Command (HRC) listing of unit awards shows HHC, 1st Battalion, 41st Infantry was awarded the VUA for the period 15 February to 3 March 1991.
DISCUSSION AND CONCLUSIONS:
1. The applicant's unit was awarded the VUA while he was assigned to that unit. As such, he is entitled to have this unit award added to his DD Form 214.
2. However, there is no evidence that the applicant was ever laterally appointed to the rank of corporal. All documents from HHC, 1st Battalion, 41st Infantry show his rank as specialist. His DA Form 2-1 shows his rank as specialist and his DA Form 2-1 does not show he was assigned to an NCO position. There are also no orders available laterally appointing him to the rank of corporal.
3. While it is acknowledged that all of the documents pertaining to his medical treatment and MEB/PEB show his rank as corporal, without orders laterally appointing him to the rank of corporal these documents are not sufficient to support changing his Purple Heart and ARCOM certificates to show the rank of corporal.
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 the VUA to his DD Form 214.
2. The Board further determined that the evidence presented was 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 his rank to corporal on his Purple Heart and ARCOM certificates.
__________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) AR20110001551
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ABCMR Record of Proceedings (cont) AR20110001551
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