IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007757 


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 the military occupational specialty (MOS) shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected.

2.  The applicant states, in effect, that he did not take Army training to get the MOS 94B (Cook).  This MOS is incorrect and he cannot apply for combat status with this MOS.  He adds that he was exposed to enemy fire while in several fire bases throughout his tour of duty in Vietnam.

3.  The applicant provides a copy of his DD Form 214 in support of his request.

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 was inducted into the Army of the United States on 3 May 1966.  He completed basic combat training at Fort Jackson, South Carolina, and his advanced individual training at Fort Bliss, Texas.  On 15 September 1966, after completing all required training, he was awarded the MOS 13F (Automatic Weapons Crewman).  On 26 September 1966, the applicant was assigned to an MOS 94B duty position.  The applicant was awarded MOS 94B on 28 November 1966; MOS 13F was withdrawn.

3.  On 4 August 1967, the applicant was reassigned from Fort Bliss to Vietnam for duty with the 4th Infantry Division.  The standard name line shows he was assigned to Vietnam in MOS 94B.

4.  The applicant served in Vietnam from 3 August 1967 through 18 April 1968 with Headquarters and Headquarters Company, 1st Battalion, 8th Infantry Regiment, 4th Infantry Division.

5.  On 30 August 1967, the applicant was promoted to the rank and pay grade of specialist four, E-4, in MOS 94B by Headquarters and Headquarters Company, 1st Battalion, 8th Infantry Regiment, 4th Infantry Division, Unit Orders Number 29.

6.  The applicant was honorably released from active duty on 21 April 1968 under the provisions of Army Regulation 635-200 (Enlisted Separations) as an early release of overseas returnee.  He was separated in the rank and pay grade of specialist four, E-4.  Item 23a (Specialty Number and Title) of the applicant's DD Form 214 shows he held MOS 94B when he was released from active duty.  On the date he was released from active duty, he had completed 1 year, 11 months, and 19 days of active military service with no lost time.

7.  There is no evidence in the applicant's service personnel records and the applicant provided none to show that he was reclassified to a combat arms MOS or to any other MOS while he served on active duty or while he served in Vietnam.

8.  Item 34 (Civilian Occupation) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was employed as a hotel and restaurant food service supervisor in a civilian capacity for 15 months prior to his entry on active duty.

9.  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.  The individual's primary MOS code number and title will be entered in item 23a.  All available records will be used as a basis for the preparation of the DD Form 214, including the DA Form 20, DA Form 66 (Officer Qualification Record), and orders.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

2.  The applicant contends that he was not Army-trained in MOS 94B and that this MOS is incorrect; however, the applicant's record shows:

	a.  He was employed as a hotel and restaurant food service supervisor in a civilian capacity for 15 months prior to his entry on active duty.

	b.  He was initially awarded the MOS 13F.  After being awarded this MOS, he was assigned to an MOS 94B duty position and was awarded MOS 94B 2 months later.  The MOS 13F, a combat arms MOS, was completely withdrawn.

	c.  He was assigned to Vietnam for duty in MOS 94B and while there he was promoted to specialist four, pay grade E-4, in MOS 94B.

	d.  On the date he was honorably released from active duty, he held MOS 94B.  There is no evidence he was ever awarded any other MOS, to include a combat arms MOS, after he was reclassified into MOS 94B from MOS 13F.

3.  Based on the evidence, the applicant is not entitled to a change to the MOS now shown in item 23a of his DD Form 214.

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)                                         AR20090007757



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ABCMR Record of Proceedings (cont)                                         AR20090007757



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