IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080016096 


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 his separation document (DD Form 214) be corrected by showing his military occupational specialty (MOS) as 11B (Infantryman) instead of MOS 35K (Avionics Mechanic).   

2.  The applicant states, in effect, that award orders issued by the 1st Cavalry Division in 1970, list his MOS as 11B, and he claims this is the MOS he worked in for the entire time he served in the Republic of Vietnam (RVN).  

3.  The applicant provides Headquarters, 1st Cavalry Division (Airmobile) Special Orders Number 105, dated 15 April 1970; and his DD Form 214 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's record shows that he enlisted in the Regular Army on
2 December 1968.  He successfully completed basic combat and advanced individual training (AIT) at Fort Gordon, Georgia.

3.  Item 22 (Military Occupational Specialties) of the applicant's Enlisted Qualification Record (DA Form 20) shows he was awarded the primary MOS of 35K on 20 June 1969.  There are no other awarded MOSs (Primary, Secondary, or Additional) listed in Item 22.  Item 27 (Military Education) contains one entry confirming he completed the18-week MOS 35K course in 1969.  

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in the RVN from 22 August 1969 through 5 July 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Troop B, 
1st Squadron, 9th Cavalry Regiment, 1st Cavalry Division.  The principle duty portion of Item 38 contains entries confirming the applicant served in an authorized 35K position during the entire period he was assigned to the 1st Cavalry Division in the RVN.  There are no principle duty entries in Item 38 that indicate the applicant was ever assigned to or performed duties in an 11B position during his assignment tenure in the RVN.  

5.  The applicant's Official Military Personnel File (OMPF) contains no orders that indicate he was ever awarded an MOS (primary, secondary, or additional) other than 35K during his active duty tenure.  The last orders published on the applicant by the 1st Cavalry Division in the RVN were date eligible to return from overseas (DEROS) orders, dated 2 February 1971.  These orders list the applicant's MOS as 35K in the standard name line (SNL).  Separation orders issued by the Army Personnel Center, Oakland, California,  dated 5 July 1971, also list the applicant's MOS as 35K in the SNL.  

6.  On 5 July 1971, the applicant was honorably released from active duty (REFRAD) after completing 2 years, 7 months, and 4 days of active military service.  The DD Form 214 he was issued shows his MOS as "35K - Avionics Mechanic" in Item 23a (Specialty Number and Title).  Item 25 (Education and Training Completed) contains one entry which shows "Avionics Mechanic, 35K2O, USASESS, 18 Wks, 69."  There are no entries on the DD Form 214 that indicate he completed training in MOS 11B or that he was ever awarded and/or held MOS 11B during his active duty tenure.

7.  The applicant provides special orders issued by the 1st Cavalry Division on 
15 April 1970, that lists the applicant's MOS as 11B in the SNL.  


8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time of the applicant's REFRAD provided for entering the primary MOS held on the date of separation in Item 23a, and for listing all formal military education completed during the period covered by the DD Form 214 in Item 25.  There were no provisions that provided for entering a secondary, additional, or duty MOS in Item 23a, or that allowed for entering on- the- job training in Item 25.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show he held MOS 11B was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The regulation in effect at the time of the applicant's REFRAD provided for entering the primary MOS and title held on the date of separation in Item 23a, and for entering formal military education completed in Item 25.  

3.  The evidence of record confirms the applicant completed the 18-week avionics mechanic (MOS 35K) course at Fort Gordon, and was awarded MOS 35K on 20 June 1969 as evidenced by entries in Item 22 and Item 27 of his DA Form 20.  The applicant's DA Form 20 also confirms that during the entire period he served with the 1st Cavalry Division in the RVN, he was assigned to a duty position in MOS 35K, as evidenced by entries in the Principle Duty portion of Item 38.  Therefore, notwithstanding the orders provided by the applicant, absent any evidence of record showing the applicant was awarded and served in MOS 11B during his active duty tenure, there is an insufficient evidentiary basis to grant the requested relief.

4.  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 this requirement.


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)                                         AR20080016096



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ABCMR Record of Proceedings (cont)                                         AR20080016096



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