RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 March 2007
DOCKET NUMBER: AR20060013510
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. Gerard W. Schwartz
Acting Director
Mr. Michael L. Engle
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 correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show his military occupational specialty (MOS) as 11B2O (Light Weapons Infantryman).
2. The applicant states that he was assigned to the Republic of Vietnam for duty with a combat construction battalion. His commander changed his MOS from 11B2O to 12B2O (Combat Construction Specialist). Soon afterwards he was reassigned to an infantry unit and performed duty as an infantryman.
3. The applicant provides a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 9 July 1970. The application submitted in this case is dated
14 September 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 applicants failure to timely file.
3. On 10 July 1968, the applicant was inducted into the Army of the United States for 2 years. He completed his initial training and was awarded MOS 11B2O (Light Weapons Infantryman).
4. On 2 January 1969, the applicant was assigned to the Republic of Vietnam for duty with the 299th Engineer Battalion (Combat).
5. On 14 March 1969, the applicant was promoted to specialist four, pay grade E4, in MOS 12B2O.
6. Special Orders Number 77, 299th Engineer Battalion (Combat), dated
18 March 1969, reclassified the applicant from primary MOS 11B2O to 12B2O.
7. Special Orders Number 112, 299th Engineer Battalion (Combat), dated
22 April 1969, awarded the applicant a secondary MOS of 11B2O.
8. On 14 May 1969, the applicant was reassigned to the 12th Infantry Regiment for duty in his secondary MOS as a rifleman. He was awarded the Combat Infantryman Badge.
9. On 19 December 1969, the applicant returned to the United States for duty at Fort Hood, Texas, where he performed duty as a tank driver with the 66th Armored Regiment.
10. On 9 July 1970, he was transferred to the United States Army Reserve Control Group (Annual Training). He had completed 2 years of active duty.
11. The applicant's DD Form 214 shows in Item 23a (Specialty Number & Title) "12B2O Combat Construction Specialist."
12. Army Regulation 635-5 (Separation Documents), as in effect at that time, provided, in pertinent part, that Item 23a of the DD Form 214 would be completed to show primary MOS code number and title.
DISCUSSION AND CONCLUSIONS:
1. The applicant's last primary MOS was 12B2O, awarded to him at the time of his promotion to specialist four. Item 23a of his DD Form 214 is in agreement; therefore, the applicant's request to change it should not be granted.
2. Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 July 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
8 July 1973. 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
__DKH __ __LMD__ __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
AR20060013510
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.0500
2.
3.
4.
5.
6.
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