IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120006608 


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 his record to show he held the rank/pay grade of sergeant (SGT)/E-5 upon separation from the Army and that the last military occupational specialty (MOS) he held was 91C (Field Nurse).

2.  He states, in effect, he:

* enlisted twice, once in the Regular Army (RA) and once in the Army National Guard
* completed advanced individual training at Fort Sam Houston, TX and he was awarded MOS 91C
* was not available to sign his DD Form 214 (Certificate of Release or Discharge from Active Duty) due to his civil conviction
* was released from custody in London, England and ultimately returned to the United States
* did not see his DD Form 214 until 8 December 2010

3.  He provides no additional documents.

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's records show he enlisted in the U.S. Army Reserve (USAR) on 22 February 1980 and was ordered to active duty for training on 25 February 1980 in MOS 16B (Hercules Missile Crew Member). 

3.  His record contains a memorandum from Battery E, 3d Air Defense Artillery Training Battalion (Missile) (One Station Unit Training), 1st Air Defense Training Brigade, Subject:  Notification of Disqualification Under Army Regulation 50-5 (Nuclear Surety Program), dated 8 May 1980, which shows he was disqualified from the personnel reliability program due to a lack of motivation towards an assignment involving nuclear duties.

4.  On 21 July 1980, he was honorably released from active duty and transferred to the USAR Control Group (Annual Training) due to “not meet procurement medical fitness standards” after serving on active duty for 4 months and 27 days.  The DD Form 214 he was issued for this period shows in:

* item 4a (Grade, Rate, or Rank), PV1
* item 4b (Pay Grade), E-1
* item 11 (Primary Specialty Number, Title, Years and Months in Specialty), None
* item 12h (Effective Date of Pay Grade), 25 February 1980
* item 14 (Military Education), None

5.  On 26 September 1983, he enlisted in the Louisiana Army National Guard (LAARNG).  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows in:

* item 4 (Grade), he enlisted in the rank/pay grade PV1/E-1
* item 10b (Remarks), he enlisted for MOS 71G (Patient Administration) 

6.  Orders Number 62, issued by the LAARNG, Office of the Adjutant General, Jackson Barracks, dated 29 March 1984, show he was ordered to active duty for training on 26 April 1984, in the rank/pay grade of PVT/E-1, for the purpose of attending the 71G course.

7.  His record contains a DA Form 4856-R (General Counseling Form), dated 9 July 1984, which shows he was counseled for impersonating a private first class (PFC)/E-3, not showing up for duty, and missing formation.

8.  His record contains a DD Form 458 (Charge Sheet), dated 2 October 1984, which shows he was charged with:

* two specifications of failure to go to his appointed place of duty at the time prescribed on 2 and 3 July 1984 
* two specifications of absenting himself from his unit without leave (AWOL) from 9 July to 2 August 1984 and on 9 September 1984
* seven specifications of uttering checks without sufficient funds 
* one specification of wearing PFC insignia on his uniform from 26 April to 2 July 1984
* two specifications of sodomy

9.  On 22 May 1986, the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, Section II, due to conviction by civilian authorities for forgery.  He was sentenced to 2 years in confinement.

10.  On 23 May 1986, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, Chapter 14, Section II, for conviction by civilian court.

11.  He acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  

12.  On 12 July 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14, due to civil conviction, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

13.  Accordingly, on 29 July 1986, he was discharged.  His DD Form 214 shows the following entries:

* item 4a, PVT
* item 4b, E-1
* item 11, None
* item 12h (Effective Date of Pay Grade), 8 September 1984
* item 14, None
14.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated to enter the grade in which serving at the time of separation and the titles of all MOS's in which an individual served at least 1 year and include for each MOS the number of years and months served.  

DISCUSSION AND CONCLUSIONS:
1.  The evidence of record shows the applicant enlisted in the USAR and the LAARNG in the rank of PVT/E-1.  In fact in 1984, he was counseled and charged with impersonating a PFC.  There is no evidence he was promoted to SGT/E-5 during either period of service.  Both DD Forms 214 correctly list his rank/grade as PVT/E-1.  

2.  The evidence of record shows he enlisted for MOS 16B and MOS 71G.  There is no evidence that he enlisted or attended training for MOS 91C.  In fact, the available evidence does not show he was awarded an MOS during either period of service.  Therefore, he is not entitled to correction of his DD Form 214 to show he was awarded MOS 91C.

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)                                         AR20120006608



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ABCMR Record of Proceedings (cont)                                         AR20120006608



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