IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017007 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 27 April 1965, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, be corrected to show that he completed a 10-week Open-Circuit Scuba Diving Course.  He also essentially requests that he be paid $200.00; $100.00 each for two dives of 100 feet. 

2.  The applicant states his DD Form 214 does not show that he completed a 
10-week Open-Circuit Scuba Diving Course.  He also states that as part of this course, two qualifying dives of 100 feet were required and he was supposed to be paid $100.00 for each dive, but that he was never paid for these dives.

3.  The applicant provides two certificates, dated 30 October 1964, which show that he completed a 10-week Open-Circuit Scuba Diving Course in support of this 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 military records show that he enlisted in the Regular Army on 1 October 1963.  He completed initial entry training and was awarded military occupational specialty (MOS) 61C (Marine Engineer), and was later awarded MOS 26L (Microwave Radio Repairman) and MOS 00B (Diver).  On 28 April 1965, he reenlisted in the Regular Army for a period of 3 years.  On 7 April 1968, he was honorably released from active duty.  

3.  Item 29 (Other Service Training Courses Successfully Completed) of the applicant's DD Form 214 does not contain an entry that he completed scuba diving training.  His military records contained orders, dated 21 August 1964, which attached him to Headquarters, 4th Transportation Command, Fort Eustis, Virginia on 24 August 1964 for approximately 10 weeks for the purpose of attending the 4th Transportation Command Scuba School.  Item 28 (Specialized Training) of the applicant's DA Form 20 (Enlisted Qualification Record) contains an entry showing that he completed a Scuba Diving Course on 30 October 1964, and the applicant provided two certificates which show that he completed a 
10-week Open Circuit Scuba Diving Course on that date.

4.  Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance on the preparation of the DD Form 214.  It provided that for item 28 (Service Schools or Colleges, College Training Courses and/or Post-Graduate Course Successfully Completed), service schools or military-sponsored courses completed in civilian schools and colleges during the period covered by the DD Form 214 would be entered.  For item 29, it provided that installation training/qualification courses, military correspondence courses, or off-duty courses completed during the period covered by the DD Form 214 would be entered.  Figure 1 of this regulation essentially shows that only a brief description of the training would be entered in item 29.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation also provides that the ABCMR is not an investigative body, and will consider cases based on the evidence of record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he completed a 10-week Open-Circuit Scuba Diving Course.  He also contends that he should be paid $200.00; $100.00 each for two dives of 100 feet. 

2.  The evidence of record clearly shows that he completed a 10-week Open-Circuit Scuba Diving Course on 30 October 1964.  Therefore, this course should be entered on his DD Form 214.  It should be entered in item 29, since it was an installation training/qualification course rather than a service school course.  However, it would have more a detailed entry if the course were entered in item 28. As an exception to policy, it would be more appropriate to correct his DD Form 214 by entering this course in item 28 of his DD Form 214. 

3.  The applicant's contention that he should be paid $200.00 for two dives of 
100 feet was considered.  However, the applicant failed to provide evidence which shows that he was entitled to $100.00 for each dive of 100 feet.  He also did not provide his leave and earnings statements on and after 30 October 1964 to demonstrate that he did not receive the pay that he now claims, more than 
40 years after his discharge, he did not receive.  As a result, the applicant's contention that he is entitled to $200.00 back pay for two dives over 100 feet, by itself, does not begin to approach the threshold of proving, by a preponderance of the evidence, that he was entitled to such pay and that he did not receive it.  In view of the foregoing, there is no basis for paying him $200.00 for two dives over 
100 feet. 

 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 adding to item 28 of his DD Form 214 the entry "4th Transportation Command Scuba School/24 August - 30 October 1964/Open Circuit Scuba Diving."
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 paying him $200.00 for two dives over 100 feet.  




      _______ _ XXX  _______   ___
               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)                                         AR20080017007



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ABCMR Record of Proceedings (cont)                                         AR20080017007



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