IN THE CASE OF: BOARD DATE: 22 September 2009 DOCKET NUMBER: AR20090004579 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: a. correction of his DD Form 214 (Report of Separation from Active Duty) to show his rank/pay grade as specialist/E-4 and his DD Form 256A (Honorable Discharge Certificate) to show his rank/pay grade as sergeant or specialist five/E5; b. a letter or DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) authorizing him to wear several awards. This is taken to mean he requests his records show he was awarded the following awards: Armed Forces Reserve Medal, National Defense Service Medal, Armed Forces Service Medal, American Defense Service Medal, United States Army Reserve Achievement Medal, Army Good Conduct Medal, Army Achievement Medal, Army Commendation Medal, and the Meritorious Service Medal; and c. authorization to wear the following items on his retired uniform: Fifth Mechanized Infantry patch; specialist E-4 or specialist five/sergeant E-5 rank insignia; two hash marks (properly known as overseas service bars); Marksman Marksmanship Qualification Badge with Automatic Rifle Bar; Expert Qualification Badge with Grenade, Machine Gun, and Bayonet Bars; and Air Assault Badge. 2. The applicant states, in effect: a. that based on his military record one infraction should not have caused a reduction in his rank. He then states that his character of overall service meets or exceeds the criteria for a belated promotion. He states that his military police spouse and he drove from Fort Bliss, Texas to Fort Pickett, Virginia to conduct training. He states that while there he wrenched his spine causing him to be in the hospital at Fort Lee, Virginia for a week. He states that his spouse and he then departed back to Fort Bliss from Fort Pickett and took a short honeymoon leave. He states that upon arrival at Fort Bliss his new unit commander accused him of negligence and being absent without leave. He adds that his demotion (reduction in grade) from E-4 to E-3 was extremely unfair due to service connected disability. He contends that the severity of his injury caused him to be two days tardy from a temporary duty and leave situation. He continues by stating that he signed the Article 15 because he did not want his wife charged, which was the deal if he signed the Article 15; and b. that he is requesting these awards for the purpose of better aiding, helping, educating, or establishing a bond with helpless or homeless veterans by having these medals, decorations, and badges. 3. The applicant provides a copy of his DD Form 214, DD Form 215, Standard Form 180 (Request Pertaining to Military Records), Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), Senator Obama letters related to his inquiry for VA information, VA rating decision, VA letter regarding VA decision on applicant's claim for service connected compensation, and a letter of response from Representative Evan's office in support of this application. 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 contain a corrected DD Form 214 showing the Good Conduct Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar. Therefore, this portion of the applicant's request will not be further discussed. 3. The applicant's military records show he enlisted in the Regular Army on 14 November 1974. He was awarded the military occupational specialty of ammunition storage and operator specialist. The highest rank he achieved was pay grade E-4. 4. The applicant's records show that he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 September 1977 for absenting himself from his unit during the period 28-29 August 1977. The punishment imposed was a forfeiture of $100.00, two hours of extra duty for 14 days, and reduction to the rank/pay grade of private first class/E-3. The reduction in grade was suspended for 60 days. He appealed the punishment and the Assistant Staff Judge Advocate indicated the proceedings were conducted in accordance with law and regulations and that the punishments imposed were within legal limits. 5. The suspension of the punishment of reduction to pay grade E-3 imposed against the applicant was vacated on 12 October 1977 and he was reduced to pay grade E-3. 6. The applicant's DD Form 214 shows he was released from active duty on 15 November 1977 in the rank of private first class/pay grade E-3 for completion of service with an honorable characterization of service after completing 3 years of active service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation. 7. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued for this period contains the entry "Marksman Rifle." No other awards or decorations are listed. 8. The applicant's DA Form 20 (Enlisted Qualification Record), item 9 (Awards, Decorations, and Campaigns) shows he was authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. No other awards or decorations are listed. 9. The applicant's records are void of any orders or other documents that indicate he was ever awarded the Armed Forces Reserve Medal, National Defense Service Medal, Armed Forces Service Medal, American Defense Service Medal, United States Army Reserve Achievement Medal, Army Achievement Medal, Army Commendation Medal, or the Meritorious Service Medal by proper authority. 10. The applicant's records are void of any orders or other documents that indicate he was ever awarded or authorized the Air Assault Badge; two overseas service bars; or the Expert Qualification Badge with Grenade, Machine Gun, or Bayonet Bars. 11. Army Regulation 600-200 (Enlisted Personnel Management System) in effect at the time, in pertinent part prescribed the enlisted promotions function of the military personnel system. Eligibility and selection criteria for promotion to pay grade E-5 included requirements such as serving in the next lower rank for a specified time, meeting minimum time in service requirements, appearing in person for selection board evaluation, in addition to other requirements for being in a promotable status. 12. The Armed Forces Reserve Medal was established by Executive Order 10163, as announced in Department of the Army Bulletin 15, 1950, and was amended by Executive Order 10439, announced in Department of the Army Bulletin 3, 1953. It is awarded for honorable and satisfactory service as a member or former member of one or more of the Reserve Components of the Armed Forces of the United States, including the Coast Guard Reserve and the Marine Corps Reserve, for a period of 10 years under certain conditions. The Ten-year-device is authorized for wear on the Armed Forces Reserve Medal to denote each succeeding 10-year period. 13. Army Regulation 600-8-22 (Military Awards), provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined. 14. The Armed Forces Service Medal was established 11 January 1996 and is a theater award as opposed to the Humanitarian Service Medal which is an individual United States service medal. The Armed Forces Service Medal may be awarded to members of the Armed Forces of the United States who, after 1 June 1992, participate, or have participated, as members of United States military units, in a United States military operation that is deemed to be a significant activity; and encounter no foreign armed opposition or imminent threat of hostile actions. 15. Army Regulation 600-8-22 provides, in pertinent part, for award of the American Defense Service Medal for service within the American Theater between 8 September 1939 and 7 December 1941 under orders to active duty for a period of 12 months or longer. 16. Army Regulation 600-8-22 provides, in pertinent part, that the Army Achievement Medal is awarded to any member of the armed forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. 17. The Meritorious Service Medal was established by Executive Order 11448, 16 January 1969, as amended by Executive Order 12312, 2 July 1981. It is awarded to any member of the Armed Forces of the United States, or to any member of the Armed Forces of a friendly foreign nation who, while serving in a noncombat area after 16 January 1969, has distinguished himself or herself by outstanding meritorious achievement or service. 18. Army Regulation 600-8-22 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. 19. Army Regulation 600-8-22 provides, in pertinent part, that the Army Achievement Medal is awarded to any member of the armed forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement. 20. Army Regulation 600-8-22 provides, in pertinent part, that the Army Reserve Components Achievement Medal is authorized for award to Army personnel including Active Guard Reserve officers in the rank of colonel and below for exemplary behavior, efficiency, and fidelity while serving as a member of an Army National Guard or Army Reserve troop program unit or as an individual mobilization augmentee. Since 3 March 1972 the medal has been authorized on completion of 4 years service with a Reserve Component unit. Individual must have completed 4 years of qualifying service on or after 3 March 1972 and before the effective date of this regulation (28 March 1995). Beginning on the effective date of this regulation, the period of qualifying service for award of the Army Reserve Components Achievement Medal is reduced from 4 to 3 years. This change is not retroactive. Such years of qualifying service must have been consecutive. A period of more than 24 hours between Reserve enlistments or officer's service will be considered a break in service. Credit toward earning the award must begin anew after a break in service. The bronze oak leaf cluster is awarded to denote the second and succeeding awards of a certain decorations, among which is the Army Reserve Components Achievement Medal. 21. Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of the Air Assault Badge. Award of the Air Assault Badge requires that an individual must have satisfactorily completed an air assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction or completed the standard Air Assault Course while assigned or attached to 101st Airborne Division (Air Assault) after 1 April 1974. 22. Army Regulation 600-8-22 requires orders to be published for discretionary awards and decorations and for permanent award of badges. However, this regulation does not require orders (or certificates) for service medals. Soldiers who meet the qualifying criteria are entitled to these awards by virtue of their service so orders are not required. 23. Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in effect at the time, governs the requirements for the overseas service bar. In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. There are special provisions regarding authorization for the overseas service bar for service in a hostile fire zone and for combining service to calculate award of the bars. 24. Army Regulation 670-1 states in pertinent part that all persons wearing the Army uniform will wear awards, decorations, and insignia in the same manner as prescribed in this regulation for active duty Soldiers. 25. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. 26. Army Regulation 635-5 states that each decoration, medal, badge, citation, and campaign ribbon awarded or authorized entry on the DD Form 214 will be verified by the Soldier's records. DISCUSSION AND CONCLUSIONS: 1. While the applicant contends he accepted the NJP to preclude his wife from also being given an NJP, there is no evidence to confirm or deny his wife would have received NJP if the applicant had not accepted his punishment. The applicant contends his reduction to pay grade E-3 was not warranted by one infraction. However, he was given the option to accept or decline the imposed punishment. After he accepted the NJP, he appealed his punishment and the proceedings were found to be conducted in accordance with law and regulations and that the punishments imposed were within legal limits. While there is no available evidence indicating the reason for vacating his suspension of reduction to pay grade E-3, it must be presumed that he committed some act to cause this action. As such, there is no basis for changing his rank on his DD Form 214. 2. The Army enlisted promotion system does not promote enlisted Soldiers based solely on length of service or meritorious service, rather it requires Soldiers to meet several prerequisites which do not appear to be met by the applicant. Therefore, there is no reason to believe he would have been promoted if he had not been reduced in grade. As such, there is no basis for changing his rank on his Honorable Discharge Certificate. 3. The National Defense Service Medal, American Defense Service Medal, Armed Forces Service Medal, and Army Achievement Medal were not authorized for award during the applicant's period of service. Therefore, he is not entitled to award of these medals. 4. The applicant did not meet the Reserve Component unit service requirement of four years for award of the United States Army Reserve Components Achievement Medal. Therefore, he is not entitled to this award. 5. The applicant did not serve in a Reserve Component for a period of 10 years. Therefore, he is not entitled to the Armed Forces Reserve Medal. 6. While the applicant asserts he should be entitled to award of the Army Commendation Medal and the Meritorious Service Medal there is no evidence he was ever awarded or that he meets the requirements for award of these medals. Therefore, he is not entitled to correction of his records to show these awards. 7. The applicant's records contain no evidence that he satisfactorily completed an air assault training course meeting the requirements for award of the Air Assault Badge. Therefore, he is not entitled to award of this badge. 8. The applicant's records show no overseas service qualifying for award of the overseas service bar. Therefore, he is not entitled to wear overseas service bars. 9. The applicant's available military records contain no evidence he earned or is authorized the Expert Qualification Badge with Grenade, Machine Gun, or Bayonet Bars. Therefore, he is not entitled to wear this badge. 10. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 11. A review of the applicant's records shows that he was awarded everything that he was entitled to receive. 12. In view of the foregoing, there is no basis for granting the applicant's 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) AR20090004579 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004579 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1