IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090009735 


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, reconsideration of the ABCMR denial to upgrade his undesirable discharge.  He also requests corrections to his rank and military occupational specialty (MOS) on his DD Form 214 (Report of Separation from Active Duty) with an effective date of 17 July 1975.  He also requests that completion of Special Forces and 82nd Airborne Division training and the fact that he is a Vietnam Era veteran be entered on his DD Form 214.

2.  The applicant states no credit was given for his time served and his Special Forces training.

3.  The applicant provides no additional evidence 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.  ABCMR Docket AR2001063170 previously denied the applicant's request for an upgrade of his discharge on 26 February 2002.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  
Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant's request for reconsideration for an upgrade of his discharge was not received within one year of the ABCMR's original decision.  His request for reconsideration does not meet the criteria outlined above.  In view of the above, the issue of upgrading his discharge will not be discussed further in these proceedings.  

3.  The applicant's military personnel records show he enlisted in the Regular Army on 22 January 1974 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  Item 6 (Military Occupational Specialties) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was awarded the MOS of 11B on 
10 May 1974.  Item 6 does not show he was awarded any other MOS's during his period of active service.  There are no orders in his military personnel records jacket (MPRJ) awarding him any other MOS's.

5.  Item 17 (Civilian and Military Schools) of the applicant's DA Form 2-1 shows the applicant completed one military school for light weapons infantryman at Fort Polk, LA in 1974.  No other military schools are listed in Item 17.

6.  The applicant was promoted to private first class/pay grade E-3 effective 
6 August 1974.

7.  On 13 February 1975, the applicant was convicted by a special court-martial for being absent without leave (AWOL) from on or about 10 September 1974 to on or about 22 January 1975.

8.  During the period from 26 March 1975 until his discharge the applicant was assigned duties as a light vehicle driver (MOS 64C) at the 363rd Transportation Company.  However, there is no record of him having been awarded the MOS 
of 64C.


9.  On 19 June 1975, court-martial charges were preferred against the applicant for being AWOL during the periods from on or about 1 April 1975 to on or about 
8 April 1975, from on or about 9 April 1975 to on or about 30 April 1975, and from on or about 1 May 1975 to on or about 17 June 1975.

10.  On 20 June 1975, the applicant voluntarily requested discharge in lieu of trial by court-martial.  On 12 July 1975, the appropriate authority approved his request for discharge, directed that he be furnished an Undesirable Discharge Certificate, and that he be reduced to the lowest pay grade under the provisions of Army Regulation 600-200 (Enlisted Personnel Management System).

11.  On 17 July 1975, the applicant was reduced to private/pay grade E-1 and discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) and was issued an Undesirable Discharge Certificate.  He had completed 9 months and 23 days net active service that was characterized as under other than honorable conditions.  He had 244 days time lost.

12.  Item 6a (Grade, Rate or Rank) of his DD Form 214 shows the rank of private.  Item 16a (Primary Specialty Number and Title) contains the entry "11B1O LT WPNS INF (Light Weapons Infantry) 74/5/10 (1974 May 10)."  
Item 27 (Remarks) does not contain any entries showing completion of formal 
in-service training courses.

13.  As defined by Congress, a Vietnam Era veteran is an individual who served in the Armed Forces during the period from 5 August 1964 to 7 May 1975.

14.  Army Regulation 600-200, then in effect, provided, in pertinent part, that upon determination that an individual was to be discharged from service with an undesirable discharge the individual would be reduced to the lowest enlisted grade.

15.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the 
DD Form 214.  This regulation, in pertinent part, stated that the active duty grade or rank at the time of separation would be entered in Item 6a of the 
DD Form 214.

16.  Army Regulation 635-5, then in effect, provided, in pertinent part, that the primary MOS code number, title, and date of award would be entered in item 16a of the individual's DD Form 214.

17.  Army Regulation 635-5, then in effect, provided, in pertinent part, that the completion of formal in-service training courses successfully completed during the period of service covered would be listed in item 27 (Remarks).  The regulation stated that training courses for combat skills would not be listed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank and MOS on his DD Form 214 are incorrect.  He also contends that his Special Forces training and his 82nd Airborne Division training are not included on his DD Form 214.  He contends that the fact that he is a Vietnam Era veteran is not shown on his DD Form 214.

2.  In accordance with Army Regulation 600-200, the applicant was reduced to private upon determination that he was to receive an undesirable discharge.  His rank at the time of his separation was private.  Therefore, the entry in item 6a of his DD Form 214 is correct.

3.  The applicant's DA Form 2-1 shows he was awarded the MOS of 11B on 
10 May 1974.  There is no evidence of record that he was awarded any other MOS's.  Therefore, the entry in item 16a of his DD Form 214 is correct.

4.  The applicant's MPRJ does not show completion of any training courses other than his advanced individual training for MOS 11B.  There is no record of his completing Special Forces training or 82nd Airborne Division training.  However, even if he had completed these courses, they might not have been listed on his DD Form 214 if they are courses for combat skills.

5.  By virtue of his period of service, the applicant is a Vietnam Era veteran.  However, there are no provisions for providing an entry to this effect on his 
DD Form 214.

6.  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)                                         AR20090009735



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ABCMR Record of Proceedings (cont)                                         AR20090009735



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