IN THE CASE OF:	  .

		BOARD DATE:	        25 JUNE 2009

		DOCKET NUMBER:  AR20090006664 


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 of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his correct rank/grade, foreign service in Germany, and all awards and medals he earned.  He also requests his honorable discharge be changed to an uncharacterized discharge.

2.  The applicant states, in effect, that his DD Form 214 contains administrative errors. 

3.  The applicant provides a copy of his DD Form 214, dated 7 March 1970, 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 records show he enlisted in the Regular Army (RA) on 29 July 1966 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).

3.  The applicant’s records show he was promoted to private (PV2)/E-2 on
30 September 1966, private first class (PFC)/E-3 on 14 February 1967; specialist four (SP4)/E-4 on 28 July 1967; sergeant (SGT)/E-5 on 21 February 1968; and staff sergeant (SSG)/E-6 on 28 February 1969.  

4.  The applicant’s records show that upon completion of MOS training, he was reassigned to the U.S. Army, Europe (USAREUR).  He served in Germany from on or about 28 January 1967 to on or about 11 April 1968.  

5.  The applicant’s records show that he was reassigned from Germany to the U.S. Army Republic of Vietnam (USARV) on or about 14 April 1968 and was initially assigned to Headquarters and Headquarters Company, 3rd Ordnance Battalion.  He was subsequently reassigned to the 60th Ordnance Company on or around 18 June 1968 and further reassigned to the 70th Ordnance Company on 23 December 1969.

6.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 14 May 1969, for twice absenting himself from his unit on or about 9 May 1969 and on or about 12 May 1969.  His punishment consisted of reduction to SGT (suspended for 3 months), a forfeiture of $147.00 pay per month for 2 months, and 30 days of restriction.  However, on 9 August 1969, the suspended punishment imposed on 14 May 1969 was vacated and ordered executed; 

	b.  on 12 December 1969, for being absent without leave (AWOL) during the period on or about 1 December 1969 through on or about 6 December 1969.  His punishment consisted of reduction to SP4, a forfeiture of $148.00 pay for one month, and an oral reprimand.  He appealed his punishment on 14 December 1969; however, on 21 December 1969 his appeal was denied by the next higher authority; and

	c.  on 1 January 1970, for being AWOL during the period on or about 22 December 1969 through on or about 31 December 1969.  His punishment consisted of a reduction to PFC, a forfeiture of $38.00 pay for one month, and 14 days of restriction and extra duty.  

7.  On 5 February 1970, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his constant disciplinary problems, dislike of the Army, unfitness for further military service, frequent counseling, close supervision, disregard of authority, substandard military appearance and bearing, and unsatisfactory conduct and efficiency.  The applicant was furnished with a copy of this bar action; however, he refused to sign it.  The bar was ultimately approved by the approval authority on
12 February 1970. 

8.  On 7 February 1970, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 4 January 1970 through on or about 15 January 1970.  He also pled not guilty to one specification of wrongfully appropriating a 5-ton government truck.  The Court found him guilty of the two charges and sentenced him to confinement at hard labor for 6 months, forfeiture of $50.00 pay per month for 6 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 7 February 1970 and approved on 22 February 1970.

9.  On 5 March 1970, the convening authority ordered the unexecuted portion of the sentence suspended until 5 July 1970. 

10.  The applicant’s records further show he was released from confinement on 4 March 1970, he departed the Republic of Vietnam on 5 March 1970, and he was ultimately honorably discharged on 7 March 1970, after being retained in the Army for 4 months and 25 days for the convenience of the Government.  The DD Form 214 he was issued confirms he was released from active duty in accordance with chapter 5 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He completed 3 years, 4 months, and 25 days of creditable active military service and had 74 days of lost time.  This form also shows the following entries:

	a.  items 5a (Grade, Rate or Rank) and 5b (Pay Grade) show the entries PVT/E-1;

	b.  item 13a (Character of Service) shows his character of service as honorable; 

	c.  item 22c (Foreign and/or Sea Service) shows he completed 1 year, 9 months, and 13 days of foreign service; and 

	d.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.
11.  Headquarters, U.S. Army Advanced Weapons Support Command, Special Orders Number 117, dated 25 May 1967, shows the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation describes the different types of characterization of service.  It states in pertinent part that an Uncharacterized Separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.  Additionally, the regulation in effect at the time provided that the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater (for example, USAREUR, USARV, etc.) in which the service was performed would be entered in item 22c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show an uncharacterized discharge and the correct rank/grade, foreign service, and medals.  

2.  With respect to the applicant’s characterization of service, the evidence of record shows that at the time of his honorable release from active duty, the applicant had completed 3 years, 4 months, and 25 days of creditable active military service.  He was not in an entry level status at the time of his separation. A separation is described as an entry-level separation if processing is initiated 
while a member is in entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.  An uncharacterized discharge means the Soldier did not serve long enough to qualify for a specified characterization of service.  The applicant's DD Form 214 correctly shows his character of service as honorable.  

3.  With respect to the applicant’s rank/grade, the evidence of record shows that the applicant was convicted by a Special Court-Martial on 7 February 1970 and that the court-martial sentenced him to reduction to PVT/E-1, among other punishment.  There is no evidence that he was promoted to PV2 or a higher rank/grade subsequent to his court-martial conviction and/or prior to his release from active duty.  His rank/grade at the time of his release from active duty was that of PVT/E-1 which is correctly shown on his DD Form 214.

4.  With respect to the applicant’s awards and decorations, Special Orders awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award.

5.  With respect to the applicant’s foreign service, the regulation in effect at the time provided that the total active duty and last overseas theater in which foreign service was performed would be entered on the DD Form 214.  The applicant's last period of foreign service was in USARV.  The evidence of records show that the applicant completed two periods of foreign service; therefore, he is entitled to correction of his DD Form 214 as follows:

	a.  he completed 1 year, 2 months, and 15 days of foreign service in Germany (USAREUR) from on or about 28 January 1967 to on or about 11 April 1968.  This period of service counts as foreign service on his DD Form 214, but the theater is not shown as it was not his last overseas theater;

	b.  he completed 1 year, 10 months, and 20 days of foreign service in the Republic of Vietnam (USARV) from on or about 14 April 1968 to on or about
5 March 1970.  However, he had several periods of lost time due to AWOL and confinement (74 days) that is not creditable service; therefore, his net creditable period of foreign service in the USARV was 1 year, 8 months, and 16 days.

6.  As a result, he completed a combined total of 2 years, 11 months, and 1 day of foreign service in USAREUR and USARV and is entitled to correction of his foreign service to show he completed a total of 2 years, 11 months, and 1 day.  Additionally, records show the applicant's last overseas theater was USARV.  Therefore, it would be appropriate to show in item 22c the entry "USARV
2  11  01."
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.  deleting from item 22c of the applicant's DD Form 214 the entry ”0001  09  13” and replacing it with the entry "USARV  0002  11  3”; and

	b.  adding to item 24 of the applicant's DD Form 214 the Marksman Marksmanship Qualification Badge with Rifle Bar; and

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 changing the applicant's characterization of service and his rank/grade at the time of his release from active duty.



      ________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)                                         AR20090006664



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ABCMR Record of Proceedings (cont)                                         AR20090006664



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