IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150000101 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * award of the Driver and Mechanic Badge * he held the rank/grade of corporal (CPL)/pay grade E-4 instead of specialist (SPC)/pay grade E-4 at the time of release from active duty 2. The applicant states that upon completion of initial entry training, he was assigned to the Medical Platoon, Headquarters and Headquarters Company, 2nd Battalion, 12th Cavalry Regiment, 2nd Brigade, 1st Cavalry Division in July 1995. He was immediately assigned the role of driver to the Main and Forward Aid Stations (M577 Operator) and continued these duties without unsatisfactory evaluation throughout his assignment to the unit. He was advised that he could not be awarded the Driver and Mechanic Badge due to a suspension of favorable activities (FLAG) that had been imposed on him nearly 6 months after being assigned to the unit because he was pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 18 (Failure to Meet Body Fat Standards). He contends that he earned the badge by fulfilling the requirements of Army Regulation 600-8-22 (Military Awards), Chapter 8 (Badges and Tabs – U.S. Origin) by possessing an Optional Form (OF) 346 (U.S. Government Motor Vehicles Operator’s Identification Card) and performing the duties for a minimum of 12 consecutive months. 3. He also states that in spite of the fact that he was an SPC with less than 2 years’ time in service, he was assigned within the first month to the position of Battalion Medical Supply Noncommissioned Officer (NCO) which was a staff sergeant/E-6 billet. As a result, he was immediately qualified for promotion to CPL under the provisions of Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Section II, paragraph 7-11. His FLAG was not initiated until nearly 6 months after being assigned this duty. He performed this duty until he was discharged and his performance was never unsatisfactory. The lack of prompt action by his command caused his record to be in error. 4. The applicant provides a: * memorandum * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 * DD Form 256A (Honorable Discharge Certificate) 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 6 October 1994 in the rank/grade of SPC/E-4 based upon his college degree. Upon completion of advanced individual training he was awarded military occupational specialty (MOS) 91B (Medical Specialist). 3. The applicant’s DA Form 2-1 contains the following pertinent information: a. Item 9 (Awards, Decorations and Campaigns) does not show award of the Driver and Mechanic Badge. b. Item 18 (Appointments and Reductions) shows he was appointed to the rank/grade of SPC/E-4 on 6 October 1994 and does not show that he was subsequently laterally appointed to the rank of CPL. c. Item 27 (Remarks) shows his DA Form 5984-E (Operator’s Permit Record), dated 15 December 1998, indicated that he was qualified to operate six different vehicles, to include the M577A2 (Tracked Command Post Carrier - which could be configured as an ambulance). d. Item 35 (Current and Previous Assignments) shows that upon completion of initial entry training, the applicant was assigned as a medic in duty MOS 91B skill-level 1 (designated for ranks/grades private (PV1)/E-1 through SPC/E-4. There is no indication that he was assigned to an NCO billet during his period of active duty service. 4. His record contains documents showing that on 2 November 1995 he was entered into the Army Weight Control Program for exceeding the maximum body fat allowance for his height and age in accordance with the provisions of Army Regulation 600-9 (The Army Weight Control Program (AWCP)). Documents also show that he consistently failed to meet body fat standards for more than 7 consecutive months. 5. The applicant’s record contains a DA Form 4856 (General Counseling Form), dated 21 May 1996, which shows he was counseled for being in the AWCP for more than 7 months without showing any progress. As a result, a recommendation would be made to the unit commander that the applicant be separated from the service with an honorable discharge for failing to comply with Army weight standards. 6. The applicant provides a memorandum rendered by his platoon leader on 29 May 1996. The platoon leader provided a list of duties performed by the applicant as a member of the medical platoon; he did not indicate that the applicant was assigned to an NCO billet or that he performed any supervisory duties. Although he mentioned that the applicant performed vehicle maintenance, he did not state the applicant was assigned duties and responsibilities as a driver or assistant driver of government vehicles for a minimum of 12 consecutive months or during at least 8,000 miles with no government motor vehicle accident or traffic violation recorded on his operator’s qualification record and performed satisfactorily for a minimum period of 1 year as an active qualified driver instructor or motor vehicle driver examiner. 7. On 20 June 1996, the applicant’s company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 18, for failure to meet body fat standards and he informed him of his rights. 8. The applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. 9. After consulting with counsel, the applicant elected not to submit statements in his own behalf. 10. On 8 July 1996, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 18, for failure to meet body fat standards and directed the issuance of an Honorable Discharge Certificate. 11. On 23 July 1996, the applicant was released from active duty (REFRAD) and transferred to U.S. Army Reserve (USAR) Control Group (Annual Training) as directed by the separation authority. His DD Form 214 shows in: a. item 4a (Grade, Rate, or Rank), his rank at the time of separation was SPC; b. item 12h (Effective Date of Pay Grade), his pay grade was effective the date he enlisted and entered active duty; and c. item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), no indication that he was awarded the Driver and Mechanic Badge. 12. A thorough review of the applicant’s record shows: a. no indication that he was either recommended for or awarded the Driver and Mechanic Badge. b. his rank/grade consistently appeared as SPC/E-4. His record is void of any indication that he ever appeared before a semi-centralized promotion board, was assigned to an NCO billet or was laterally appointed to CPL during the period covered by his DD Form 214. 13. The applicant provides an Honorable Discharge Certificate that shows he was honorably discharged from the USAR in the rank of CPL on 28 December 1999. 14. Army Regulation 600-8-22 provides for award of the Driver and Mechanic Badge. a. Component bars are authorized only for the following types of vehicles and/or qualifications: * Driver-W (for wheeled vehicles) * Driver-T (for tracked vehicles) * Driver-M (for motorcycles) * Driver-A (for amphibious vehicles) * Mechanic (for automotive or allied vehicles) * Operator-S (for special mechanical equipment) b. Army Regulation 600-8-22 states the eligibility requirements for drivers require that a Soldier must: (1) qualify for and possess a current OF 346; (2) be assigned duties and responsibilities as a driver or assistant driver of government vehicles for a minimum of 12 consecutive months or during at least 8,000 miles with no government motor vehicle accident or traffic violation recorded on his or her Equipment Operator’s Qualification Record; and (3) perform satisfactorily for a minimum period of 1 year as an active qualified driver instructor or motor vehicle driver examiner. 15. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function. This regulation provides that a transferable flag will be imposed on a Soldier on the day the commander enters them into the AWCP and will remain in effect until the command decides that the Soldier is in compliance with the program. A flag properly imposed in accordance with this regulation prohibits, in part: a. appointment, reappointment, reenlistment, and extension; b. promotion or reevaluation for promotion; and c. awards and decorations. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 18 states Soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 shall be separated under this provision when it is the sole basis for separation. The Soldier must be given a reasonable opportunity to comply with and meet the body fat standards. If no medical condition exists and if the individual fails to make satisfactory progress in the program after a period of 6 months, then initiation of separation or imposition of a bar to reenlistment is required. The service of Soldiers separated under this chapter will be characterized as honorable. 17. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel. Chapter 7 of the current version of this regulation prescribes policies, procedures and systems to advance, promote, laterally appoint and administrative reduction for all Army National Guard enlisted Soldiers, except those included in the end strength of the Active Army and who are covered by the Active Army promotion system. Paragraph 7-4 of this regulation provides that a Soldier is in a nonpromotable status and will not be selected, promoted, advanced, appointed to a higher grade, or laterally appointed to CPL when the Soldier is under a FLAG per Army Regulation 600-8-2 or has a circumstance that requires a FLAG. Paragraph 7-11 provides: a. The State Adjutant General may retain or specify which authorities listed in paragraph 7–3 will laterally appoint Soldiers. b. All lateral appointments will be issued on orders using the information in National Guard Regulation 310-10, format 304. c. An SPC will be appointed to CPL when the Soldier is assigned and works in a SGT position. The position must be the Soldier’s primary MOS or career progression MOS. This includes SPC who cannot otherwise be promoted when they do not meet the time in service requirement, or were not considered for promotion. d. Soldiers will normally retain the grade of CPL and perform the duties of an NCO; however, the appointment authority may laterally appoint CPL to SPC without the individual’s consent for: (1) Demonstrated inefficiency in technical, supervisory or other requirements of the MOS. (2) Significant loss of qualifications, including medical inability to perform the duties of CPL in that MOS as required in DA Pam 611–21. (3) Disciplinary action under UCMJ or criminal convictions that adversely affects the Soldier’s ability to perform the duties of a CPL. 18. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. In pertinent part, it stated 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. This regulation, in pertinent part, also stated the active duty rank at the time of separation will be entered in item 4a of the DD Form 214. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions that his DD Form 214 should be corrected to show he was awarded the Driver and Mechanic Badge and that he held the rank of CPL instead of SPC at the time of his REFRAD were carefully considered. 2. A thorough review of the applicant’s record shows no indication that he was either recommended for or awarded the Driver and Mechanic Badge. It is also not apparent that he fulfilled all of the requirements for award of the badge while serving on active duty. Although item 27 of his 2-1 shows he was qualified to operate the M577A2, it also shows his permit was dated 15 December 1998, more than 2 years after his REFRAD. Therefore, there is no way to determine whether he operated this vehicle while in the Regular Army or afterward when he was serving in the USAR. Additionally, he record is void of evidence and he has not provided any evidence showing he fulfilled the other prerequisites for award of the badge: a. be assigned duties and responsibilities as a driver or assistant driver of government vehicles for a minimum of 12 consecutive months or during at least 8,000 miles with no government motor vehicle accident or traffic violation recorded on his or her Equipment Operator’s Qualification Record; and b. perform satisfactorily for a minimum period of 1 year as an active qualified driver instructor or motor vehicle driver examiner. 3. His record is void of any indication that he ever appeared before a semi-centralized promotion board, was assigned to an NCO billet, or was laterally appointed to CPL during the period covered by his DD Form 214. Although he attests that he was assigned to an NCO billet and performed supervisory duties; his record shows he was assigned to a skill level-1 position and his platoon leader did not mention that he performed any supervisory role in the listing of the applicant’s duties. The applicant’s rank consistently appeared as SPC on every document in his record, many of which bear his signature, to include his DD Form 214. 4. The fact that the applicant was flagged for suspension of favorable personnel actions due to his enrollment in the AWCP would have prevented him from either being awarded the Driver and Mechanic Badge or being laterally appointed to CPL at any time between when it was imposed on 2 November 1995 and when he was REFRAD on 23 July 1996. 5. The fact that the applicant’s Honorable Discharge Certificate shows he was honorably discharged from the USAR in the rank of CPL on 28 December 1999 is duly noted and indicates that he was laterally appointed to CPL at some point after his REFRAD and during his service in the USAR. 6. Although it is possible that the applicant was awarded the Driver and Mechanic Badge and laterally appointed to CPL while serving in the USAR after his REFRAD; Army policy provides that the DD Form 214 is a synopsis of a Soldier's most recent period of continuous active service. There is no provision for including subsequent USAR promotions, awards, or qualification badges on a DD Form 214 rendered for a previous period of active service. 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) AR20150000101 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000101 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1