IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130018774 


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 award of the Army Good Conduct Medal.  He also requests, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) as follows: 

* Items 6a (Grade, Rate or Rank) and 6b (Pay Grade) to show the entries private first class (PFC)/E-3 vice private two (PV2)/E-2 
* item 15 (Date Entered Active Duty This Period) to show his date of entry as 5 December 1974 vice 5 December 1975
* item 16a (Primary Specialty Number and Title) to remove the word "Trainee" next to his specialty

2.  The applicant states:

* he entered the Army at age 16 and he believes that due to policies and statutes, his minority status was not reflected on his final discharge document
* he still served prior to age 17 and he feels this service should be recognized in some way
* there is precedence in H.R. 610, approved on 10 November 1988 and was assigned private law 100-44 regarding the case of Calvin Graham

3.  The applicant provides 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's records show he was born on XX November 1958.  He enlisted in the Regular Army for 3 years, in the rank of private/E-1, at 17 years and 1 month of age, on 5 December 1975.  

3.  Also on 5 December 1975, the Baltimore Armed Forces Examining and Entrance Station published Enlistment/Travel Order Number 239-12 stating "having enlisted this date in the U.S. Army…, you are hereby assigned to active duty."  

4.  He completed basic combat training at Fort Dix, NJ, from on or about 12 December 1975 to on or about 12 February 1976.  He was subsequently reassigned to Fort Polk, LA, on or about 17 February 1976, for advanced individual training in military occupational specialty (MOS) 11B (Infantryman). 

5.  His DA Form 2-1 (Personnel Qualification Record) shows:

* he was advanced to PV2/E-2 on 5 March 1976; there is no entry for advancement to PFC/E-3
* there is no entry to confirm completion of MOS 11B training
* there is no entry showing award of the Army Good Conduct Medal 

6.  On 16 March 1976, while still in training, he complained of low back pain that was caused by being run over by a fork lift in a bottling company, 7 months prior to his entry on active duty.  On examination, the military physician determined he was not qualified for enlistment. 

7.  Also on 16 March 1976, the applicant requested discharge from the military by reason of erroneous enlistment, in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 5-9.  He indicated that his justification was that he did not meet enlistment standards of chapter 2, Army Regulation 40-501 (Standards of Medical Fitness) at the time of his enlistment. 

8.  On 19 March 1976, he underwent a medical evaluation board that diagnosed him with transitional vertebrate, with spina bifida of sacrum, existed prior to service.  The MEB found him physically fit and recommended his return to duty for separation.  

9.  On 22 March 1976, the separation authority approved the applicant's discharge in accordance with paragraph 5-9 of Army Regulation 635-200.  

10.  On 28 March 1976, Headquarters, 5th Infantry Division, Fort Polk, LA, published Special Orders Number 062 ordering his discharge effective 25 March 1976 for medical reasons that existed prior to service.  

11.  Accordingly, the applicant was discharged on 25 March 1976.  His DD Form 214 shows he was honorably discharged by authority of paragraph 5-9 of Army Regulation 635-200.   He completed 3 months and 21 days of total active service.  His DD Form 214 also shows in:

* Items 6a and 6b, the entries "PV2" and "E-2"
* Item 7 (Date of Rank), the entry "76-03-05"
* Item 15, the entry "75-12-05"
* Item 16a, the entry "11B00 Trainee"
* Item 26 (Decorations, Medals, Badges, Commendations and Citations Awarded or Authorized), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

12.  His service records do not contain orders awarding him MOS 11B or promotion orders advancing him to PFC/E-3.  Likewise, his service records do not contain orders awarding him the Army Good Conduct Medal.

13.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contained guidance for preparation of the DD Form 214.  It stated:

* items 6a and 6b would show the active duty rank and pay grade at the time of the Soldier's separation; the rank was taken from the Soldier's promotion/reduction orders
* item 7 would show the date of rank
* Item 15a shows the date of entry on active duty as a result of enlistment or reenlistment
* Item 16a shows the primary specialty number and title
14.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  Any one of the following periods of continuous enlisted active Federal military service qualifies for award:

* Each 3 years completed on or after 27 August 1940
* For first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946
* For first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year
* For first award only, upon termination of service, on or after 27 June 1950, of less than 1 year when final separation was by reason of physical disability incurred in line of duty
* For first award only, for those individuals who died before completing 1 year of active Federal service if the death occurred in the line of duty

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show the correct entry date, specialty, and grade.  He also requests award of the Army Good Conduct Medal. 

2.  With respect to his entry date, the applicant enlisted on 5 December 1975, not 1974 as he contends.  His enlistment contract and enlistment order confirm his date of enlistment is 5 December 1975.  This is the same date listed in item 15 of his DD Form 214.  Since this date is correct, there is no need or reason to change it. 

3.  With respect to his grade, the available evidence shows the applicant was advanced to PV2/E-2 on 5 March 1976.  There are no orders in his service records and he provides none to confirm his promotion or advancement to PFC/E-3 prior to his discharge on 25 March 1976.  His DA Form 2-1 shows PV2 was the highest rank he attained.  In the absence of documentary evidence, such as promotion orders, memorandum/endorsement, leave and earnings statement showing receipt of E-3 pay, or any other documentary evidence confirming he was advanced to PFC/E-3, there is insufficient evidence to grant him this portion of the requested relief.

4.  With respect to his specialty, the available evidence shows he began training in MOS 11B on or about 17 February 1976 and he was discharged on 25 March 1976 prior to completion of training.  He never completed training nor was he awarded an MOS.  At the time of his discharge, he was a trainee in MOS 11B.  That is what item 16a of his DD Form 214 shows and since this entry is correct, there is no need or reason to change it. 

5.  With respect to award of the Army Good Conduct Medal:

	a.  Award of the Army Good Conduct Medal requires completion of 3 consecutive years of active service.  However, for first award only, commanders may award this medal upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year or upon termination of service of less than 1 year when final separation was by reason of physical disability incurred in line of duty.

	b.  The applicant in this case completed 3 months and 21 days of active duty and was medically discharged.  However, his discharge was due to condition that existed prior to entry on active duty and was neither caused nor aggravated by his active duty service.  Therefore, he does not meet the criteria for this award and should not be entitled to it. 

6.  The applicant refers to Private Law 100-44 regarding the case of Calvin Graham.  His case is not similar to Mr. Calvin Graham's case.

	a.  A web search of this particular case revealed a case of a young U.S. Navy service member who lied about his age (12 years) at the time of his enlistment and after his discharge he fought for his benefits as a veteran.  He ultimately had his medals reinstated (including the Purple Heart) and he received his Department of Veterans Affairs (VA) disability compensation. 

	b.  There is no correlation between the applicant's case or Mr. Calvin Grahams' case.  The applicant was never wounded in action nor received the Purple Heart.  Additionally, VA benefits should be addressed to the VA since they are not within the purview of this Board.  This Board corrects military records.  It does not establish or determine entitlements to any veterans benefits.

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)                                         AR20130018774





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ABCMR Record of Proceedings (cont)                                         AR20130018774



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