IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090013994 


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 the military occupational specialties (MOS's) and his record of assignments listed on his DA Form 20 (Enlisted Qualification Record) and item 23 (Specialty Number & Title) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He indicated he might desire a personal appearance hearing.

2.  The applicant states the following:

	a.  There are numerous flaws and inaccuracies on his DD Form 214 and DA Form 20;

	b.  He enlisted for training as a Military Police Officer and not for career group 70 (Administration) as is listed and he did not attend a clerical administration course;

	c.  Upon completion of training he was assigned to Cape Canaveral, FL, where he served as an assistant movement specialist or procurement specialist in the rank/grade of private first class (PFC)/E-3;

	d.  He was advanced to specialist four (SP4)/E-4 at Cape Canaveral on
13 January 1970, while serving as an assistant movement specialist, but his record of assignment shows he was working in MOS 57H as a cargo handler or 70A as a documentation clerk; 

	e.  In February 1971, he was assigned to the 154th Transportation Company, 71st Transportation Battalion, where he worked in security and as a unit supply sergeant;

	f.  His record of assignments erroneously shows that during his assignment to the RVN, he was working in MOS 57H as a signalman and then in MOS 76Y as a supply clerk;

	g.  He was appointed an acting sergeant in August 1970, which his records show in a somewhat accurate manner, but he worked in several MOS's while assigned to the 71st Transportation Battalion;

	h.  He claims at no time did he work in MOS's 57H or 70A and while in the RVN, he worked in MOS 76Y by day and as a member of the unit's security forces at night;

	i.  He was assigned to Fort Eustis, VA after his RVN tour and his record shows he served in MOS 57H as a signalman, but he was never aware of this MOS or duty assignment;

	j.  Item 23 of DD Form 214 and item 38 (Record of Assignments) of his DA Form 20 should be corrected to accurately document the MOS's and duty positions he served in, as confirmed in supporting statements from three fellow Soldiers he served with; and

	k.  Items 39 (Campaigns) and 41 (Awards and Decorations) of his DA Form 20 should show he participated in the Vietnam Winter-Spring, Sanctuary Counteroffensive, and Vietnam Counteroffensive campaigns and he earned the Presidential Unit Citation (PUC); Bronze Star Medal (BSM); Vietnam Service Medal (VSM); RVN Campaign Medal with Device (1960); United States Army Support Command, Saigon, Certificates of Achievement; and Unit National Defense Transportation Award 1971 (Operation Red Hat).

3.  The applicant provides the documents he identifies in his 2 July 2009 self-authored letter to the Board.

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 record shows he enlisted in the Regular Army on 16 May 1969.  The DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) documenting the applicant's enlistment and an accompanying DA Form 3286-5 (Statement for Enlistment) prepared during his enlistment processing show he was enlisting for Army Career Group (ACG) 70 (Administration).  The applicant and a service representative authenticated both of these documents with their signatures on 16 May 1969.

3.  The applicant's DA Form 20 contains an entry in item 22 (Military Occupational Specialties) that shows he was awarded the primary MOS (PMOS) of 70A on 10 September 1969.  Item 27 (Military Education) contains an entry showing he completed the MOS 70A clerk course at the United States Army Training Center (USATC) in 1969.  It also shows he was awarded PMOS 57H (Cargo Handler) on 13 January 1970 and the secondary MOS (SMOS) of 76Y (Armorer/Unit Supply Specialist) on 29 July 1970.

4.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served in USARPAC [U.S. Army Pacific] - RVN from 8 February through 27 December 1970 and at USARPAC - Johnston Island from 13 July through 26 September 1971.  Item 38 contains the following record of assignment entries showing the effective date, duty MOS (DMOS), principal duty, and unit of assignment during his service:

* 2 August 1969; DMOS 70A; Adv Ind Tng [Advanced Individual Training]; Company E, 2nd Battalion, 5th Combat Support Training Brigade, Fort Dix, NJ

* 22 August 1969; DMOS ---; Casual; en route to Patrick Air Force Base, FL

* 8 September 1969; DMOS 70A; Assistant Movement Specialist; USACKO, Cape Canaveral, FL;

* 13 January 1970; DMOS 57H; Cargo Handler; USACKO, Patrick Air Force Base, Florida;
* 
23 January 1970; DMOS ---; Casual; en route to USARPAC

* 17 February 1970; DMOS 57H; Cargo Handler; 124th Transportation Company, USARPAC

* 7 March 1970; DMOS 57H; Signalman; 154th Transportation Company, USARPAC

* 8 March 1970; DMOS 76Y; Supply Clerk; 154th Transportation Company, USARPAC

* 20 December 1970; DMOS ---; Casual; en route to CONUS [continental United States]

* 1 February 1971; DMOS 57H; Signalman, 490th Transportation Company, Fort Eustis, VA

* 13 July 1971; DMOS 71N; Cargo Checker; 490th Transportation Company, USARPAC, Johnston Island; and

* 26 September 1971 [no further entries]

5.  Item 48 (Date of Audit) of the applicant's DA Form 20 contains an entry confirming the applicant last audited the record on 9 May 1970.

6.  The applicant's Official Military Personnel File (OMPF) contains the following MOS orders:

	a.  Headquarters, Eastern Area, Military Traffic Management and Terminal Service, Brooklyn, New York, Special Orders Number 8, dated 15 January 1970, which withdrew the applicant's PMOS of 70A and awarded him the PMOS of 57H, effective 13 January 1970; and

	b.  Headquarters, United States Army Support Command, Saigon, Special Orders 213, dated 1 August 1970, which awarded the applicant the SMOS of 76Y, effective 29 July 1970.  These orders confirm his PMOS was 57H in the standard name line.

7.  The applicant's OMPF also contains orders appointing the applicant as an acting sergeant on 5 August 1970.  The standard name line confirms his PMOS was 57H at the time.  It also contains orders issued on 16 March 1971, which promoted him to the rank/grade of sergeant (SGT)/E-5 in the MOS 57H, effective 22 February 1971.
8.  On 10 December 1971, orders directing the applicant's release from active duty (REFRAD), effective 17 December 1971, were issued by the United States Army Transportation Center, Fort Eustis.  The standard name line confirms the applicant's MOS was 57H at the time.

9.  On 17 December 1971, the applicant was honorably REFRAD, in the rank/grade of SGT/E-5, after completing 2 years, 7 months, and 2 days of active military service.  Item 23a of the DD Form 214 he was issued shows his PMOS was 57H at the time.

10.  The applicant provides three third-party statements provided by individuals who claim to have served with him in the RVN.  These statements recount events that took place during their RVN assignment and support the applicant's claim with the Department of Veterans Affairs (VA).  They also indicate they performed security duties during their assignment.  None of the statements are from members of the chain of command or records custodians responsible for MOS awards and/or assignments.

11.  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.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time of the applicant's REFRAD stipulated the DA Form 20 and all available records, documents, and orders would be used to prepare the DD Form 214.  The instructions for completing item 23a stated to enter the primary specialty number and title.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Chapter 2 contains guidance on the functions of the ABCMR.  It states the ABCMR will decide cases on the evidence of record and 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.  Section IV contains guidance on hearings and disposition of 
applications.  Paragraph 2-11 states applicant's do not have a right to a hearing before the ABCMR.  The Director or the ABCMR or the Board may grant a formal hearing whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to list his correct MOS's and record of assignments has been carefully considered.  However, the evidence is not sufficient to support this claim.
2.  The governing regulation at the time called for entering the PMOS in item 23a of the DD Form 214.  He had been promoted to SGT in MOS 57H.  REFRAD orders and the applicant's DA Form 20 confirm he held PMOS 57H on the date of his separation.  Therefore, there appears to be no error or injustice related to the MOS entry in item 23a of his DD Form 214.  

3.  The applicant's record confirms he enlisted for ACG 70, as evidenced by entries on his DD Form 4 and DA Form 3286-5 prepared on him during his enlistment processing.  He authenticated both of these documents with his signature on the date of his enlistment.

4.  The applicant's DA Form 20 and MOS orders in his record confirms he was trained in and awarded MOS 70A upon completion of AIT at Fort Dix, in August 1969.  This is evidenced by entries in items 22, 27, and 28 of his DA Form 20.  Item 38 and orders on file in his OMPF confirm he was awarded PMOS 57H on 13 January 1970 and held this PMOS through the date of his REFRAD on 
17 December 1971.

5.  Although the applicant worked in his SMOS 76Y for a period of time in the RVN, and in DMOS 71N for a short period during an assignment to Johnston Island, there is no evidence of record indicating either of these MOS's were ever awarded to him as his PMOS by proper authority in official orders.  Further, his statement and the third-party statements he provides while recounting experiences in the RVN fail to provide information regarding specific duty assignments and MOS award that supports a change to the record of assignments or MOS's documented in the record.

6.  Security duties performed by the applicant during his combat service in the RVN were likely additional duties required of many or all Soldiers in a combat environment.  Even if he performed those duties on a regular basis they do not provide a sufficient evidentiary basis to support a change to the MOS's and duty assignments recorded in his records.  Further, the applicant last audited his DA 
Form 20 on 9 May 1970, after his departure from the RVN, and verified the information on the record, to include item 22 and item 39, was correct at that time.

7.  The applicant is advised the applicability of these additional security duties to his VA claim is not a basis to change his official record of assignments or to the MOS's he held.  The ABCMR does not correct records solely for the purpose of qualifying for veterans benefits.  This eligibility should be addressed to the VA, the agency responsible for administering these benefits.

8.  By regulation, applicants are not entitled to a formal hearing by the ABCMR.  The Director of the ABCMR or the Board may direct a formal hearing when it is required in the interest of justice.  In this case, there is no evidence supporting a conclusion a formal hearing is necessary to satisfy the interest of justice.  As a result, there is an insufficient evidentiary basis to support granting the applicant's request for a formal hearing before the ABCMR.

9.  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 this 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)                                         AR20090013994



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ABCMR Record of Proceedings (cont)                                         AR20090013994



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