IN THE CASE OF:	  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120011026 


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 reinstatement of the rank and pay grade of sergeant (SGT), E-5, with entitlement to back pay of all monies collected.

2.  He states that he and his team did nothing wrong and they followed regulations.  This became a political incident going from the Belgium Embassy to the U.S. Embassy.  They were the scapegoats.  It has taken him this long to locate personnel and seek treatment for post-traumatic stress disorder.

3.  He provides:

* DA Form 2-1 (Personnel Qualification Record - Part II), Section VII (Current and Previous Assignment)
* two DA Forms 2166-6 (Enlisted Evaluation Report)
* orders for award of the Army Commendation Medal and Army Achievement Medal
* three DA Forms 1059 (Service School Academic Evaluation Report)
* 1984 Letter of Commendation
* DA Form 873 (Certificate of Clearance and/or Security Determination
* DA Form 3180 (Personnel Screening and Evaluation Record)
* DA Form 2496 (Disposition Form)
* acknowledgement receipt of Permanent Disqualification from the Personnel Reliability Program (PRP)
* 1985 separation reassignment orders


* 1986 discharge orders
* six pictures alleged to be of himself and his team
* nine character statements
* letter to the Department of Veterans Affairs
* Standard Form 180 (Request Pertaining to Military Records)

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 12 September 1978, for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He served in Germany from 27 December 1978 through 12 December 1980.

3.  He was promoted to pay grade E-5 on 22 August 1982.  

4.  He was honorably released from active duty in pay grade E-5 on 11 September 1982 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).

5.  He was awarded the Army Commendation Medal for his service from 21 January 1981 through 11 September 1982.

6.  He again enlisted in the RA, in pay grade E-5, on 3 February 1983, for 3 years.  He served in MOS 11B and he also completed training and was awarded MOS 91A (Medical Specialist).

7.  He was awarded the Army Achievement Medal for his service from 18 September through 6 October 1983.  


8.  He again served in Germany, from 14 November 1983 through 9 December 1985.

9.  A DA Form 873, dated 7 September 1984, shows he was granted a "Top Secret" security clearance on 5 September 1984.

10.  On 15 November 1984, he was issued a Letter of Commendation for his outstanding service.

11.  A DA Form 2496, dated 14 August 1985, advised the applicant of his company commander's intent to permanently disqualify the applicant from the PRP.  The company commander stated that he felt the applicant was no longer qualified to perform his duties in MOS 11B at the grade of E-5 because of his failure to exercise the amount of maturity and responsibility necessary to work with the Host Nation Guard Forces and failing to adequately supervise lower enlisted personnel while taking part in an incident which could have had potentially fatal results.  The applicant was advised of his rights.

12.  On the same day, he acknowledged receipt of the intended action and elected not to make a statement in his own behalf.

13.  On 19 September 1985, he acknowledged receipt and understanding of the approval of his permanent disqualification from the PRP.

14.  A DA Form 3180, dated 19 September 1985, shows he was disqualified for assignment to a nuclear duty position due to negligence and delinquencies in performance of duty.

15.  A DA Form 4187, dated November 1985, shows he was reduced to pay grade E-4 with a date of rank of 23 October 1985.

16.  He was honorably released from active duty in pay grade E-4 on 31 January 1986, at his expiration of term of service (ETS), and he was transferred to a Reserve unit.

17.  He was honorably discharged from the USAR in pay grade E-4 on 8 December 1986.

18.  There are no finance documents in the available records.


19.  He provided nine statements wherein some individuals stated they didn't remember the applicant's specific instance at all.  Some individuals stated they did remember some instance with a Belgium guard company locking and loading on their security forces.  He also submitted copies of pictures alleged to be of himself and his team.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 3 February 1983 in pay grade E-5, for 3 years, with prior enlisted service.  On 14 August 1985, he was permanently disqualified from the PRP.  He acknowledged his understanding of the reason for his disqualifications and elected not to submit a statement in his own behalf.  He was reduced to pay grade E-4 on 23 October 1985.  He was released from active duty at his ETS in pay grade E-4 on 31 January 1986.  He was discharged from the USAR in pay grade E-4 on 8 December 1986.

2.  There is an insufficient evidentiary basis to support granting the requested relief.  After considering the supporting documentation and the applicant's statement, he has not provided clear and convincing evidence that the reduction to pay grade E-4 was unjust, in whole, or in part, to support his request.

3.  No pay records were available for review and his Article 15 is not available.  There is simply no information or available evidence to support his request for entitlement to back pay of all monies collected.  Again, he has not provided clear and convincing evidence that the punishment and reduction to pay grade E-4 was unjust, in whole, or in part, to support this portion of his request.

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)                                         AR20120011026





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ABCMR Record of Proceedings (cont)                                         AR20120011026



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