IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004316 


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 (Armed Forces of the United States Report of Transfer or Discharge) to reflect his awards of the Army Good Conduct Medal (AGCM), Army Commendation Medal (ARCOM), and marksmanship qualification badges and that his reentry eligibility (RE) code be changed.

2.  The applicant states his awards of the AGCM, ARCOM, and marksmanship qualification badges should be added to his DD Form 214 and his RE code should be changed because he was asked to reenlist when he was released from active duty (REFRAD).

3.  The applicant provides a copy of his DD Form 214.

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 enlisted in the Regular Army in Detroit, Michigan, on 23 June 1970 for a period of 2 years.  He was transferred to Fort Knox, Kentucky, to undergo one-station unit training as a cook.  He completed training and remained at Fort Knox for his first and only duty assignment.

3.  On 1 February 1971, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 12 January to 31 January 1971.

4.  On 3 August 1971, he was convicted by a special court-martial of being AWOL from 11 June to 11 July 1971.  He was sentenced to a forfeiture of $75.00 per month for 3 months, confinement at hard labor for 75 days, and reduction to pay grade E-1 (confinement and reduction suspended for 6 months).

5.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records contain a duly-authenticated DD Form 214 which shows the applicant was honorably REFRAD on 14 February 1972 under the provisions of Army Regulation 635-200 (Personnel Separations) due to early separation for good and sufficient reasons determined by Headquarters, Department of the Army.  He completed 1 year, 7 months, and 22 days of active service and had 49 days of lost time due to AWOL.  He was issued an RE code of 3B.

6.  His DD Form 214 issued at the time of his REFRAD shows he was awarded the National Defense Service Medal.

7.  A review of the applicant's official records shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  There is no evidence in his records showing he was awarded the AGCM or ARCOM during his service.

8.  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, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

9.  RE-3B applied to persons not qualified for continued Army service due to having lost time during their last period of service, but the disqualification was waivable.  A waiting period of 2 years from separation was required before a waiver could be submitted through a local recruiting office.

10.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM was awarded to individuals who distinguished themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  Conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court-martial.  There was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

11.  Army Regulation 600-8-22 (Military Awards) states the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant was issued an RE code of RE-3B based on his having lost time during his last period of service in accordance with the regulation in effect at the time.  The issuance of his RE code RE-3B was specifically linked to his having lost time and he could have applied for waiver in order to enlist had he chosen to do so.  In the absence of evidence to the contrary, there appears to be no basis to change his RE code.

2.  The applicant's contention that he was awarded the AGCM has been noted and appears to lack merit.  There are no orders in his official records documenting award of the AGCM and – given that he was convicted by a special court-martial on 3 August 1971, which is an automatic disqualifier, and was REFRAD on 14 February 1972 – it is not reasonable to presume that he was awarded the AGCM.  In the absence of evidence to the contrary, there appears to be no basis to add the AGCM to his DD Form 214.

3.  The applicant's contention that he was awarded the ARCOM has also been noted and found to lack merit.  The evidence submitted with his application and the evidence of record do not support his contention.  In the absence of such evidence, there does not appear to be any basis to add award of the ARCOM to his DD Form 214.

4.  However, the applicant's records contain orders awarding him the Expert Marksmanship Qualification Badge with Rifle Bar.  Accordingly, it should be added to his DD Form 214 at this time.
 
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 is 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 Expert Marksmanship Qualification Badge with Rifle Bar to his DD Form 214.

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 changing his RE code and adding awards of the AGCM and ARCOM to his DD Form 214.



      _______ _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)                                         AR20110004316



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ABCMR Record of Proceedings (cont)                                         AR20110004316



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