IN THE CASE OF:	  

		BOARD DATE:  6 December 2012

		DOCKET NUMBER:  AR20120009447 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* his rank/grade as something other than private (PV1)/E-1
* the Air Assault Badge
* his attendance at Air Assault School
* a Marksmanship Qualification Badge for the M-60 Machine Gun, M-72 Light Anti-Tank Weapon (LAW), and the M-203 Grenade Launcher

2.  The applicant states his life was in shambles for years and he finally has his life back.

3.  The applicant provides no additional evidence.

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 Regular Army on 26 January 1989 in the rank of PV1 and he held military occupational specialty 13E (Cannon Fire Direction Specialist).  He attained the rank/grade of specialist (SPC)/E-4 on 1 April 1991.

3.  Permanent Orders (PO) Number 042-004, dated 11 February 1992, issued by Headquarters (HQ), 101st Airborne Division and Fort Campbell, Fort Campbell, KY, awarded him the Air Assault Badge for the period 16 January through 3 February 1992 (3 weeks), for successful completion of the standard Air Assault Course, Class Number 18-92.

4.  His records contain a:

	a.  DA Form 4187 (Personnel Action), undated, that shows the applicant was reduced from the rank of SPC to PV1 effective 18 January 1994.

	b.  DA Form 4126 (Bar to Reenlistment Certificate), undated, that shows the applicant's immediate commander recommended that he be barred from reenlisting on 22 February 1994 and his senior commander approved the bar to reenlistment on 23 February 1994.  This form shows his rank as PV1.

	c.  Block 8 (Record of Non-Judicial Punishment (NJP)) of the DA Form 4126 shows that, on 18 January 1994, the applicant received NJP under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana.  The Article 15 is not available for review with this case.

5.  He was honorably discharged from active duty on 28 June 1994.  He completed 5 years, 5 months, and 3 days of net active service.

6.  The DD Form 214 he was issued shows in:

* items 4a (Grade, Rate or Rank) and 4b (Pay Grade) the entries PV1 and E-1, respectively
* item 12h (Effective Date of Pay Grade) the entry 18 January 1994

7.  His DD Form 214 does not show the:

* Air Assault Badge
* Marksmanship Qualification Badge with Machine Gun Bar (M-60)

8.  Item 14 (Military Education - Course, Title, Number of Weeks, and Month and Year Completed) of his DD Form 214 does not show the Air Assault Course.

9.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record), in pertinent part, does not show a Marksmanship Qualification Badge with Machine Gun Bar (M-60).

10.  His record does not contain orders showing award of a Marksmanship Qualification Badge for the M-60 Machine Gun.

11.  Table 8-2 of Army Regulation 600-8-22 (Military Awards) lists the weapons for which component bars are authorized with Marksmanship Qualification Badges.  This table does not list the M-72 LAW or the M-203 Grenade Launcher as weapons for which component bars are authorized.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The regulation stated, in pertinent part, in item 14 list the formal in-service (full-time attendance) training courses successfully completed during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  PO awarded the applicant the Air Assault Badge based on his successful completion of the 3-week Air Assault Course on 3 February 1992.  Therefore, he is entitled to correction of his DD Form 214 to show this badge and the course.

2.  With respect to the rank on his DD Form 214, the evidence of record confirms he was reduced to the rank of PV1 on 18 January 1994, presumably as a result of the NJP he received on 18 January 1994 for wrongfully using marijuana.  There is no evidence in his record and the applicant has not provided any evidence that shows he was promoted to a higher rank prior to his discharge on 28 June 1994.  His DD Form 214 correctly reflects his rank as PV1; therefore, he is not entitled to this portion of the requested relief.

3.  With respect to a Marksmanship Qualification Badge with Machine Gun Bar (M-60), his record is void of orders showing he was awarded this badge and it is not listed on his DA Form 2-1.  Therefore, there is an insufficient evidentiary basis for granting the applicant this portion of the requested relief.

4.  With respect to Marksmanship Qualification Badges for the M-72 LAW and the M-203 Grenade Launcher, component bars for these weapons are not authorized by the governing regulation.  Therefore, he is not entitled to this portion of the requested relief.

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 to his DD Form 214:

* the Air Assault Badge
* the entry "AIR ASSAULT COURSE, 3 WEEKS (FEBRUARY 1992)"

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 the correction of his DD Form 214 to show his rank as something other than PV1 and Marksmanship Qualification Badges for the M-60, M-72, and the M-203.



      _______ _  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)                                         AR20120009447



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ABCMR Record of Proceedings (cont)                                         AR20120009447



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