IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080018649 


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 correction to his rank and military occupational specialty (MOS) on his DD Form 214 (Report of Separation from Active Duty) with an effective date of 28 January 1972.

2.  The applicant states he was promoted to sergeant (SGT)/pay grade E-5 not specialist five (SP5) and his MOS was 13E2O (Cannon Fire Direction Specialist) not 63B2O (Wheel Vehicle Mechanic).  He states that upon completion of Reconnaissance Sergeant School he was assigned as a radio telephone operator with 3rd Battalion, 21st Infantry where he was awarded the Bronze Star Medal in the MOS of 13E2O.  He states he was promoted to sergeant in the MOS of 13E2O.

3.  The applicant provides, in support of his application, copies of his orders for award of the Bronze Star Medal, page one of a promotion standing list for promotion to pay grades E-6 and E-5, his Certificate of Training for Reconnaissance Sergeant School, his DA Form 3645 (Organization Clothing and Equipment Record), and three photographs.

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 personnel records show he was inducted into the Army of the United States and entered active duty on 11 March 1970.  He completed basic combat and advanced individual training and was awarded MOS 64A1O (Light Vehicle Driver).

3.  On 8 May 1971, the applicant was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 82nd Artillery in the Republic of Vietnam with duties in MOS 64A1O.

4.  Headquarters, 23rd Infantry Division (Americal) Special Orders Number 212, dated 31 July 1971, promoted the applicant to specialist four (SP4)/pay grade
E-4, withdrew his MOS of 64A1O, and awarded him MOS 63B2O.

5.  On 21 September 1971, the applicant was assigned to Battery B, 
3rd Battalion, 82nd Artillery in the Republic of Vietnam with duties in MOS 
64A1O.

6.  On 11 December 1971, the applicant was assigned to Battery C, 
3rd Battalion, 82nd Artillery in the Republic of Vietnam with duties in MOS 63B2O.

7.  Headquarters, 196th Infantry Brigade General Orders Number 00172, dated 14 January 1972, provided by the applicant, awarded the applicant the Bronze Star Medal.  The applicant is identified as a specialist four with MOS 13A1O (Field Artillery Basic).

8.  Headquarters, 3rd Battalion, 82nd Field Artillery, Promotion Standing List, dated 24 January 1972, provided by the applicant, lists the applicant in promotion standing to E-5 and shows his MOS as 13E2O and date selected as 23 January 1972.


9.  Headquarters, 196th Infantry Brigade General Orders Number 00547, dated 16 February 1972, awarded the applicant the Army Commendation Medal.  The applicant is identified as a specialist four with MOS 63B2O.

10.  Item 22 (Military Occupational Specialties) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was awarded MOS 64A1O on 6 May 1970 and MOS 63B2O on 8 July 1971.  There are no entries showing the award of MOS 13E2O.

11.  The orders promoting the applicant to pay grade E-5 are not in his Military Personnel Records Jacket (MPRJ).  There are no orders in his MPRJ showing he was awarded MOS 13E or 13A.

12.  On 28 January 1972, the applicant was released from active duty by reason of his being an overseas returnee.  He had completed 1 year, 10 months, and 
18 days of active service that was characterized as honorable.

13.  Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 contains the entry "SP5."  Item 23a of his DD Form 214 contains the MOS code number 64A1O.

14.  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.  The 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided two official documents that identified him with MOS 13A and 13E.  However, his MPRJ does not contain any orders showing he was awarded either one of these MOSs.  His DA Form 20 does not show that he was awarded MOS 13A or 13E.  Therefore, MOS 13E2O is not authorized to be entered on the applicant's DD Form 214.



2.  There are no orders promoting the applicant to pay grade E-5 in the applicant's MPRJ.  Promotion orders would indicate whether the applicant was promoted to sergeant or specialist five.  In the absence of promotion orders or any other evidence to the contrary, it is presumed that the Army's administrative processing of the applicant was correct and that the entry "SP5" on his 
DD Form 214 is correct.

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 that 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)                                         AR20080018649



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ABCMR Record of Proceedings (cont)                                         AR20080018649



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