RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 NOVEMBER 2003                   
	DOCKET NUMBER:   AR2003087760

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, award of the Army Commendation Medal.

2.  The applicant states, in effect, that he was appointed to an administrative position involving sensitive material at Headquarters and Headquarters Battery, DIVARTY (Division Artillery).  

3.  He notes that shortly after the arrival of his new commander problems began to arise.  

4.  He states that people who should have been promoted were not, orders were being held, and “things just seem to appear very strange.” 

5.  He states that eventually a post-card was found in the mailroom, which was authored by his commander, and contained derogatory racial remarks.  He notes that the commander was eventually relieved of his command in January 1990.

6.  The applicant states that his section sergeant recommended him for an award of the Army Commendation Medal, but his commander denied the award stating that he had an outstanding telephone bill.  The applicant indicated that he had paid the bill and was given no further explanation for the denial of his award.  However, because he worked in the administrative section he knew that orders for the award had been issued.

7.  The applicant provides his self-authored statement in support of his request, but submits no additional evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred in 1992. The application submitted in this case is dated 29 February 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant served an initial period of active duty between 1982 and 1986.  He was released from his initial period of active duty in pay grade E-4 with an honorable characterization of service.  He was awarded an Army Achievement Medal during his initial period of active duty.

4.  On 2 August 1988 the applicant enlisted in the Regular Army, in pay grade 
E-4, for a period of 4 years.

5.  Following his August 1988 enlistment he was assigned to the 6th Battalion of the 1st Field Artillery element in Germany where, according to his Department of the Army Form 2-1 (Personnel Qualification Record), he was assigned duties as a cannon crewman (13B).

6.  In December 1988, according to his records, he was assigned to Headquarters and Headquarters Battery, DIVARTY as a cannon crewman.

7.  On 8 November 1989 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for speeding in a tactical vehicle, disobeying a lawful order, and wrongfully appropriating a military vehicle.  The UCMJ action, which indicated that the applicant was serving in pay grade E-3 at the time, was initiated by one company commander in September 1989, but finalized by another company commander in November.

8.  According to the applicant’s file he returned to the 6th Battalion, 1st Field Artillery on 15 November 1989.

9.  The applicant departed Germany in November 1991.

10.  There is no indication in available records that the applicant was ever recommended for an award of the Army Commendation Medal.

11.  Following the applicant’s return to the United States he was assigned to Fort Benning, Georgia and ultimately discharged by reason of physical disability on 
3 September 1992.

12.  The applicant’s authenticated Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect award of the Army Commendation Medal.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 
6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) states, in pertinent part, that award recommendations for the Army Commendation Medal will be filed an individual’s Official Military Personnel File (OMPF) when the award recommendation is downgraded or disapproved.  The correspondence that disapproved or downgraded the award will also be filed.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, nor has the applicant provided any, that he was recommended for award of the Army Commendation Medal.

2.  The applicant’s records indicate that he was assigned to the DIVARTY between December 1988 and November 1989 and during that period was punished under Article 15 of the UCMJ and reduced to pay grade E-3 from his enlistment grade of E-4.  

3.  It is unlikely that a recommendation for an award of the Army Commendation Medal would have been initiated in view of the applicant’s record of misconduct while assigned to that organization.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 3 September 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 September 1995.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __MDM__  __BJE __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested or to excuse the applicant's failure to file this application with the ABCMR within its 3-year statute of limitations.  Therefore, the Board does not excuse the applicant's failure to timely file within the time prescribed by law and this application is denied for that reason.

		_____John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003087760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.