IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007043 


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 military records as follows: 

* an upgrade of his under honorable conditions discharge
* correction of his DD Form 214 (Report of Separation from Active Duty) to show the Expert vice the Marksman Marksmanship Qualification Badge with Grenade Bar

2.  The applicant states, in effect, his DD Form 214 contains an error with respect to the marksmanship badge and that his discharge should be upgraded. 

3.  The applicant does not provide any 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 2 November 1976 and held military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained during his military service was private first class/E-3. 

3.  He served in Germany from 7 May 1978 to on or about 30 October 1979.  He was assigned to Headquarters and Headquarters Battery, 1st Battalion, 2nd Field Artillery.  

4.  He was frequently counseled by members of his chain of command and/or reprimanded for various infractions including: 

* failing to be at his appointed place of duty
* disrespect to his superiors and insubordination
* substandard performance
* constant involvement with altercations 
* not keeping his hair to standards
* not being military-oriented
* constantly complaining about basic medical tasks
* expressing outright hostility toward several members of the team
* poor hygiene
* not being prepared for inspection
* sloppy appearance

5.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 2 January 1978, wrongfully engaging in a fist fight in front of the barracks and being absent without leave (AWOL) from 22 to 25 December 1978
* 14 September 1978, failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order 

6.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he was awarded the Marksman Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification badge with Rifle Bar.  

7.  On 17 January 1979, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)) of Army Regulation   635-200 by reason of showing total disregard to military authority and his unit, being stubborn toward conforming to military life, substandard performance as a medic, and loss of trust and confidence in his ability.  The immediate commander recommended a general discharge.

8.  On 17 January 1979, the applicant acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this separation action and declined to make a statement in his own behalf.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the EDP. 

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge action and directed that he be issued a General Discharge Certificate.  

11.  The applicant's DD Form 214 shows he was discharged on 6 February 1979 under the provisions of paragraph 5-31 of Army Regulation 635-200 with an under honorable conditions (general) discharge.  He completed 2 years, 3 months, and 3 days of active service and he had 3 days of lost time.  

12.  His DD Form 214 also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or 

punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman -- in which an individual has qualified in a prescribed record course.  An appropriate bar is furnished to denote each weapon with which the individual has qualified.  For example, Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar.

17.  Award of marksmanship badges is not permanent.  An award for previous marksmanship weapons qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. In the event a badge is authorized for firing a limited or sub-caliber course, it is automatically revoked if a record service course is subsequently fired.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The evidence of record shows the applicant continuously displayed a lack of self-discipline and an inability to conform to military rules as evidenced by several instances of NJP and/or negative counseling.  Accordingly, his chain of command initiated separation action against him and he voluntarily consented to discharge under the EDP. 

	b.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

	c.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

2.  With respect to the marksmanship badge:

	a.  The applicant's DA Form 2-1 contains an entry that shows he qualified marksman and was awarded the Marksman Marksmanship Qualification Badge with Grenade Bar.  That is why his DD Form 214 listed this badge.  

	b.  There is no evidence, in the form of an order, entry on the DA Form 2-1, memorandum/endorsement, or a firing record that shows the applicant qualified expert with this weapon system.  In view of the foregoing evidence, he is not entitled to the requested relief. 

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)                                         AR20140007043



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ABCMR Record of Proceedings (cont)                                         AR20140007043



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