RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000636 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged in pay grade E-5.  He also requests correction of his records to show his temporary duty (TDY) in Vietnam in 1970.  

2.  The applicant states he was promoted to E-5 while in Korea during his assignment with the Korean Military Assistance Group.  He also states he was TDY in Vietnam in 1970.  

3.  The applicant provides no additional documents in support of his 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 enlisted in the Regular Army on 29 March 1968 for a period of three years in pay grade, E-1.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 71B (clerk typist).

3.  He was promoted to the temporary rank of specialist four (SP4), E-4 on 18 February 1969.

4.  Headquarters, U.S. Army Advisory Group, Korea, Special Orders Number 217, dated 10 September 1969, reassigned the applicant to duty with Headquarters, Korean Military Assistance Group, Deputy Chief of Staff for Logistics (DCSLOG) in Seoul, Korea on 10 September 1969.  


5.  The applicant’s Report of Medical Examination, dated 29 September 1970 shows his rank and pay grade as SP5, E-5.

6.  Item 31 (Foreign Service) on his DA Form 20 (Enlisted Qualification Record) does not show the applicant served TDY in Vietnam.  He departed Korea on 30 October 1970.

7.  Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington, Special Orders Number 303, dated 30 October 1970, released the applicant from active duty on 30 October 1970.  On the standard name line, his rank is shown as specialist five (SP5).

8.  His DA Form 1811 (Physical and Mental Status on Release from Active Service) shows his rank as SP5.

9.  His service personnel records contain a DA Form 137 (Installation Clearance Record), dated 20 October 1970, which shows his rank and pay grade as SP5, E-5.

10.  The applicant’s personnel records contain a DA Form 2376 (Notification to State Adjutants General Release from Active Duty of Obligated Reservist), dated 30 October 1970, which shows his rank as SP5.

11.  Item 5a (Grade, Rate or Rank) on his DD Form 214 shows the entry SP4 and item 5b (Pay Grade) shows his pay grade as E-4.  His date of rank is shown as 18 February 1969.

12.  There is no evidence available which indicates the applicant had TDY in Vietnam.  Item 30 (Remarks) on his DD Form 214 shows the entry “VN SERVICE NONE.”  

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for the preparation of the DD Form 214.  In pertinent part it stated that the grade in which enlisted personnel served at the time of separation, indicating whether permanent or temporary, would be entered in item 5a and pay grade in item 5b on the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  Although there are no orders in the available records which shows the applicant’s promotion to SP5, E-5, there are numerous documents in his personnel records which indicate his rank and pay grade as SP5, E-5.  

2.  There is no evidence of record which shows he was reduced to SP4, E-4 prior to his release from active duty.  However, his DD Form 214 shows he was released from active duty in the rank of SP4, E-4 with a date of rank of 18 February 1969.  

3.  The preponderance of evidence indicates that an administrative error has occurred in this case.  Any reasonable doubt should be resolved in the applicant’s favor and it would be appropriate to amend items 5a and 5b on the applicant's DD Form 214 to show "SP5" and "E-5," respectively.  As a matter of convenience and in the absence of any other evidence, the date (29 September 1970) of the earliest document that references his rank as SP5 will be used as his date of rank.

4.  There is no evidence of record which indicates the applicant served TDY in Vietnam in 1970.  His service records show he was assigned to the Korean Military Assistance Group in Seoul, Korea from September 1969 to October 1970.  Therefore, there is insufficient evidence on which to base correction of his DD Form 214 to show TDY in Vietnam.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

x______  x______  x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

      a.  by amending item 5a on his DD Form 214 to show the entry "SP5"; 
      
      b.  by amending item 5b on his DD Form 214 to show the entry "E-5"; and 
      
      c.  by amending item 6 on his DD Form 214 to show the entry “29 September 1970.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing TDY in Vietnam on his DD Form 214.  




                     x________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080000636


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508