IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080004687 


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, in effect, that he be given active duty service credit for the time he served in Vietnam even though he was assigned to a civilian organization; and that he be promoted one grade, to Lieutenant Colonel, on the retired list, retroactive to the date he returned to the United States in August 1974.

2.  The applicant states, in effect, that he was essentially a member of the US Forces in Vietnam because of his advisory status with the Vietnamese Army Joint General Staff, J-4.  Because of the agreement signed between the United States and North Vietnam in Paris in early 1973, no military personnel, except for 50 uniformed members assigned to the Defense Attaché Office in Saigon, were allowed in country; therefore, those who were sent there to assist after removal of US Forces were considered civilians.

3.  In support of his application, the applicant submitted a self-authored letter explaining his rationale supporting his request; a copy of a job description for an Financial Analyst, as of 25 July 1973; a copy of a DA Form 2496, Disposition Form, Subject:  Security Clearance, dated 7 May 1973; a copy of page 1 of 10 pages of Policies and Standards in force at the Computer Sciences Corporation, dated 26 January 1973; a copy of a letter written to him by a Vietnamese friend and one-time comrade; a letter he wrote to a former Secretary of Defense about his Vietnamese friend and one-time comrade, dated 17 October 1988; an extract from a publication, titled, "Vietnam From Cease-Fire to Capitulation"; a copy of a chapter [Chapter8] from a book titled, "The Decline of U.S. Support, Military Assistance, Fiscal Year 1974"; a copy of a DD Form 730, Receipt for Unused Transportation Requests and/or Tickets Including Unused Meal Tickets, dated 9 August 1973; a copy of a Questionnaire – CS, which he completed for his employer; a page having copies of a variety of identification and privilege cards; a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, with an effective date of his separation on 30 June 1969; and a copy of Department of the Army Special Orders Number 31, dated 14 February 1969, which announced his retirement from active duty in the rank and pay grade, Major, O-4.

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 was commissioned a Second Lieutenant in the Reserve on 23 August 1956.  Prior to being commissioned, he served in the Air Force as a noncommissioned officer in the rank and pay grade, Technical Sergeant, E-6.  The record also shows that he had prior service in the Army as a noncommissioned officer in the rank and pay grade, Sergeant First Class, E-6. 

3.  After receiving his commission in the Army, the applicant served on active duty until he was honorably separated for the purpose of retirement.

4.  The evidence shows that the applicant was promoted to the rank and pay grade, Major, O-4 on 19 July 1967.

5.  On 3 February 1969, the applicant was given the opportunity to continue his service by being retained on active duty under the provisions of Army Regulation 135-173, Section V, until 31 July 1972.  On 12 February 1969, the applicant declined the offer and opted to submit his request for voluntary non-disability retirement.

6.  Item 17 (Foreign Service), of the applicant's DA Form 66, Officer Qualification Record, shows he served in Vietnam, as an Army officer for the period 17 June 1968 through 17 May 1969.

7.  The applicant was separated, on 30 June 1969, in the rank and pay grade, Major, O-4, for the purpose of retirement.  The evidence shows he was transferred to the Retired Reserve on 1 July 1970 in compliance with Special Orders Number 31, Headquarters, Department of the Army, dated 14 February 1969.  On the date of his separation, he had served 21 years, 8 months and 16 days total service of which 21 years, 2 months and 12 days were active service.

8.  There is no evidence in the applicant's service record, and he provided none, to show he was recalled to active duty after his transfer to the Retired Reserve.

9.  The applicant provided a DA Form 2496, Subject:  Security Clearance, dated 7 May 1973, which shows he was granted an interim secret security clearance.  The applicant's rank shown on the form is that of a GS-13 [a civilian employee].

10.  The applicant submitted a CSCD Form No. 1, Subject:  Assignment of CSC Employees to Vietnam, dated 26 January 1973.  Paragraph 1.6, in the Policy Statement section of the form, contains a statement that indicates the applicant was in Vietnam as a contract employee with a Government service equivalent grade of GS-13.  This statement reads, in part, "The employee will sign an agreement as to the length of the assignment."

11.  On page 19 of an extract from the book, U.S. Organization for the Cease-Fire, is information that the DAO (Defense Attaché Office) was authorized only 50 military and 1,200 civilian employees.  

12.  The applicant did not provide reference to a Federal statute which provides or provided for the conversion of service spent as a contract employee to the Federal Government to creditable military service.  He also did not provide a reference to a Federal statute which would allow the promotion of a recalled mobilized retiree [which he was not] to the next higher grade than that in which he was transferred to the Retired Reserve.

13.  Mobilized retirees are not eligible for promotion. A retiree may be eligible for an increase in retirement pay if the time spent on mobilization/recall increases the individual's years of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was transferred to the Retired Reserve on 1 July 1970 in the rank of Major, pay grade, O-4.

2.  There is no evidence, and the applicant provided none, to show he was ever recalled to active duty in his retired pay grade.

3.  The evidence does show that while the applicant was still on active duty, he was given the opportunity to remain on active duty until 31 July 1972.  The applicant declined the offer and instead opted to submit his application for voluntary, non-disability retirement.  The additional time he would have gained, had he accepted the offer, could very well have earned him the promotion he now seeks.

4.  There is no evidence the applicant was assigned to Vietnam to one of the 50 military spaces that were agreed to by the Governments of Vietnam and the United States.  On the contrary, the evidence shows he was hired by a civilian firm doing business with the Government of the United States and he was a contract civilian employee of that firm who held a Government-equivalent grade of GS-13 and he perhaps occupied one of the 1,200 authorized civilian spaces with the Defense Attaché Office.

5.  The applicant did not provide reference to a Federal statute which provides or provided for the conversion of service spent as a contract employee to the Federal Government to creditable military service.  He also did not provide a reference to a Federal statute which would allow the promotion of a recalled mobilized retiree [which he was not] to the next higher grade than that in which he was transferred to the Retired Reserve.  The applicant is advised that the Army Board for the Correction of Military Records is not an investigative agency and makes decisions based on the information that applicants provide in support of their cases.

6.  Based on the evidence in this case, the applicant is not entitled to have the time he spent in Vietnam as a contract employee, after his retirement from the Army, converted to creditable active duty service time.  In addition, the applicant is not entitled to a promotion in the Retired Reserve, to the rank of Lieutenant Colonel, pay grade, O-5.  The applicant is advised that currently, mobilized retired officers, which the evidence shows the applicant was not, are prohibited from being promoted; however, they may be entitled to an increase in their retired pay when they are restored to the Retired Reserve at the conclusion of their 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)                                         AR20080004687





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ABCMR Record of Proceedings (cont)                                         AR20080004687



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