RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060014225 


	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:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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 Report of Separation from Active Duty (DD Form 214) to show his rank as sergeant and that he served in the Republic of Vietnam.

2.  The applicant states that his rank should be sergeant and that he served in the Republic of Vietnam. 

3.  The applicant provides a copy of his retirement orders that indicate his rank as sergeant and his primary military occupational specialty (MOS) as 94B2O (Food Service Specialist).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1974, the date of his retirement.  The application submitted in this case is dated 27 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 applicant’s failure to timely file.

3.  On 17 September 1948, the applicant enlisted in the Regular Army for 
3 years.  He served through a series of enlistments until his retirement for length of service on 31 March 1974.  He had completed 20 years and 3 days of creditable active duty. 

4.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that he served with the 198th Infantry Brigade from 29 March 1968 to 23 March 1969, in the Republic of Vietnam.

5.  On 7 February 1969, the applicant was reduced by special court-martial from staff sergeant, pay grade E6 to sergeant, pay grade E5.



6.  Special Orders Number 194, 172nd Artic Light Infantry Brigade, dated 
5 October 1972, laterally appointed the applicant from sergeant, pay grade E5, to specialist five, pay grade E5.  This same order also reclassified the applicant from MOS 94B4O (Food Service Sergeant) to 94B2O (Food Service Specialist).

7.  Special Orders Number 209, United States Army, Alaska, dated 30 October 1973, relieves the applicant from assignment and duty effective 31 March 1974 and transfers him to the Retired Reserve effective 1 April 1974.  This order indicates in the standard name line that the applicant is a sergeant with an MOS of 94B2O.

8.  DD Form 214, effective 31 March 1974, shows that the applicant was transferred to the Retired Reserve as a specialist five.  It further shows his MOS as 94B2O (Food Service Specialist) and that he served in Indochina [Vietnam] from 29 March 1968 through 23 March 1969.  It also shows that his awards include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

9.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, provides, in pertinent part, that an enlisted member of the Regular Army on active duty at the time of retirement will be retired in the active duty grade in which serving.

DISCUSSION AND CONCLUSIONS:

1.   The evidence of record clearly shows that the applicant was reclassified from a food service sergeant to a food service specialist and laterally appointed as a specialist five in October 1972.  There is no evidence showing that he was reappointed to sergeant prior to his retirement.  The standard name line on his retirement orders is in error with respect to showing him as a sergeant with a specialist's MOS.  However, the applicant's DD Form 214 correctly shows him as a specialist five with MOS 94B2O.   

2.  The applicant's DD Form 214 shows that he served in Indochina from 
29 March 1968 through 23 March 1969.  The evidence of record clearly supports this entry.

3.  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 the aforementioned requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 March 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 March 1977.  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.

5.  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

__LE____  __MJF__   ___LMB _  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.




_          Lester Echols__________
          CHAIRPERSON




INDEX

CASE ID
AR20060014225
SUFFIX

RECON
 
DATE BOARDED
20070329
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
120.0000
2.
129.0000
3.

4.

5.

6.