RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060011159 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

Member

	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 that his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show his proper service dates and military occupational specialty (MOS).

2.  The applicant states, in effect, that he was assigned to the 839th Engineer Aviation Battalion (EAB) in South Korea from July 1954 to 1955; however, his DD Form 214 only shows his assignment with the 808th EAB Okinawa, Japan.

3.  He further states that he was assigned to the 6th Air Defense Transportation, Fort Leonard Wood, Missouri from May 1954 to July 1954.  He states that he transferred to the 839th EAB in South Korea and served from July 1954 to 1955. Then he transferred to Company B, 808th EAB (SCAWF) Okinawa, Japan and served from "1955 to 1955," and finally he transferred to Fort Carson, Colorado from where he served until he was separated.

4.  The applicant provides:

     a.  a copy of a DD Form 214;

     b.  a copy of Standard Form 180 (Request Pertaining to Military Records), dated 6 March 1976;

     c.  a copy of a Questionnaire about Military Service, dated 17 March 1976; and

     d.  a copy a letter from the Office of the Adjutant General Reserve Components Personnel and Administration Center, dated 4 May 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on  
23 February 1956, the date of his release from active duty.  The application submitted in this case is dated 18 July 2006.

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 limitations 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.  The applicant’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant’s DD Form 214 with an effective date of separation of 23 February 1956.

4.  The applicant’s reconstructed records show that he entered active duty on 
24 February 1954.  He was honorably released from active duty on 23 February 1956 after serving 2 years of active service.

5.  Item 5 (Specialty Number or Symbol) of the applicant's DD Form 214 shows the entry 621.10 (Engineer Equipment Mechanic).

6.  Item 28 (Most Significant Duty Assignment) of the applicant's DD Form 214 shows the entry Company B, 808th EAB, APO 970.

7.  Special Regulation 615-360-1 (Enlisted Personnel) established the standardized policy for preparing and distributing the DD Form 214.  The regulation provides, in pertinent part, that you enter the primary MOS served, during the Soldier’s continuous active military service in item 5 (Specialty Number or Symbol).

8.  Special Regulation 615-360-1, in effect at that time, states, that the last unit or similar element to which assigned for duty rather than the element of which the individual was a part while moving to a separation activity is the last entry.  Assignments to units for purpose of transfer from an oversea command to the United States are considered part of the movement to a separation activity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his records be corrected to show his proper service dates and MOS.

2.  There is no evidence to show that the applicant's MOS was different from the MOS that is recorded in item 5 of his DD Form 214.  Without supporting evidence a presumption of regularity is applied, that what Army personnel recorded in


item 5 was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any documentation to overcome the presumption of regularity.

3.  Although, the applicant submitted a request pertaining to his military records, a questionnaire about his military service, and a letter from the Office of the Adjutant General Reserve Component Personnel and Administration Center, these documents are not sufficient to correct his records.

4.  Based on the regulation, the entry recorded in item 28 of the applicant's DD Form 214 should be his last duty assignment.  The dates of service for the applicant's duty assignments are not recorded on the DD Form 214.  Therefore, he is not entitled to correction of his records to show the dates that he served in former units.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 February 1956; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
22 February 1959.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___lmd__  ____dkh_  ___kan___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__________Kathleen A. Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011159
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
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.

2.

3.

4.

5.

6.