IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018797 


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) as follows:

	a.  Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) to show sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4 and 

	b.  Item 23a (Specialty Number and Title) to show 67N2O (Helicopter Repairer) instead of 64A1O (Light Vehicle Driver).

2.  The applicant states he was promoted to SGT/E-5 in December 1971 and that his job was that of a chief crew with the 229th Assault Helicopter Battalion, 1st Cavalry Division.  He also states that in November 1971, he volunteered to extend his Vietnam tour for a second year and he was wearing his E-5 rank at the time.  He completed the aviation crew chief tests and his military occupational specialty (MOS) was changed to 67N.  In February 1972, he was told to go home.  Somehow, his expiration of term of service paperwork was rushed and it was completed incorrectly during out-processing at Fort Lewis, WA.

3.  The applicant provides a copy of his DD Form 214, dated 8 February 1972; copies of Special Orders Number 87, 136, and 229, issued by Headquarters, 3d Brigade (Separate), 1st Cavalry Division (Airmobile), on 5 July 1971, 23 August 1971, and 24 November 1971, respectively; a copy of the 229th Assault Helicopter Battalion Promotion Standing List, dated 30 November 1971; a copy of Special Orders Number 39, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 8 February 1972; and an Internet printout of U.S. military occupation codes, dated 14 September 2009, 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 August 1970.  Subsequent to completion of basic combat training at Fort Dix, NJ, he completed advanced individual training at Fort Ord, CA, and he was awarded MOS 11C (Indirect Fire Infantryman).

3.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to private first class/E-3 on 5 January 1971 and to SP4/E-4 on 1 April 1971.  Item 33 does not show he was promoted to SGT/E-5.

4.  Item 38 (Record of Assignments) of his DA Form 20 shows he served in Vietnam from on or about 4 January 1971 to on or about 7 February 1972.  He was assigned as follows:

	a.  from on or about 13 January 1971 to on or about 24 March 1971, he served as an infantryman in MOS 11C with Company B, 1st Battalion, 5th Cavalry;

	b.  from on or about 24 March 1971 to on or about 4 July 1971, he served as a light vehicle driver in MOS 64C with the 15th Supply and Service Battalion and Detachment 4 (Supply and Transportation Company), 3d Brigade (Separate), 1st Cavalry Division (Airmobile);

	c.  from on or about 4 July 1971 to on or about 20 October 1971, he served as a door-gunner in MOS 67A with Company A, 229th Aviation Battalion; and

	d.  from on or about 20 October 1971 to on or about 5 February 1972, he served as a crew chief in MOS 67N with Company A, 229th Aviation Battalion.

5.  On 1 April 1971, Headquarters, 3d Brigade (Separate), 1st Cavalry Division (Airmobile), issued Special Orders Number 108, promoting him to SP4/E-4.  Additionally, on this date, MOS 64A became his primary MOS (PMOS) and 11C became his secondary MOS (SMOS).

6.  On 28 June 1971, he requested reassignment to Company A, 229th Assault Helicopter Battalion by disposition form.  He listed his MOS as 64C.  His request was approved and on 5 July 1971, Headquarters, 3d Brigade (Separate), 1st Cavalry Division, issued Special Orders Number 87, directing his reassignment to that unit.

7.  On 5 July 1971, Headquarters, 3d Brigade (Separate), 1st Cavalry Division (Airmobile), issued Special Orders Number 97, directing his reassignment to Company A, 229th Aviation Battalion.  The orders listed his rank as SP4.

8.  On 23 September 1971, Headquarters, 3d Brigade (Separate), 1st Cavalry Division (Airmobile), issued Special Orders Number 167, awarding him the Aircraft Crewmember Badge.  The orders listed his rank as SP4.

9.  On 10 November 1971, he requested to be awarded SMOS 67N by disposition form,.  He indicated that he had performed in this MOS for a period in excess of 3 months and that he was qualified to perform all required duties.  He listed his rank as SP4.

10.  On 24 November 1971, Headquarters, 3d Brigade (Separate), 1st Cavalry Division (Airmobile), issued Special Orders Number 229 awarding him SMOS 67N2O and withdrawing SMOS 11C2O.  The orders listed his rank as SP4 and his primary MOS (PMOS) as 64A1O.

11.  On 5 February 1972, he was issued a DA Form 137 (Installation Clearance Record) to out-process from his unit in Vietnam.  The form listed his rank as SP4.

12.  On 8 February 1972, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, published Special Orders 39 directing his separation.  The orders listed his rank as SP4.

13.  His records do not contain orders promoting him to SGT/E-5.

14.  He was honorably released from active duty on 8 February 1972 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.  Items 5a and 5b of his DD Form 214 contain the entries SP4/E-4 and item 9 (Date of Rank) shows 1 April 1971.  Additionally, item 23 contains the entry 64A.

15.  He submitted the following documents:

	a.  a copy of Headquarters, 229th Assault Helicopter Battalion, Promotion Standing List, dated 30 November 1971, which shows he was recommended for promotion to SGT/E-5 by a selection board that convened on 24 and 29 November 1971 and his name was added to a merit list; and

	b.  an internet printout of U.S. military occupation codes with emphasis on the fourth character of the MOS which represents the skill level commensurate with rank and grade, wherein skill level "2" identifies a SGT rank.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The regulation directed, in pertinent part, that the purpose of the separation document was to provide the individual with documentary evidence of his or her military service.  Chapter 2 contained guidance on the preparation of the DD Form 214.  Item 5a shows the grade in which the enlisted Soldier was serving at time of separation, indicating whether permanent or temporary; item 5b shows the enlisted Soldier's pay grade; item 5c shows the date of rank or the grade shown in item 5a; and item 23 shows the PMOS code number and title.

17.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his correct rank/grade and MOS.

2.  With respect to his rank/grade:

	a.  The evidence of record shows that at the time of his separation on 8 February 1972 he held the rank/grade of SP4/E-4.  His record is void of any orders promoting him to the rank of SGT/E-5 and item 33 of his DA Form 20 does not show an entry for a promotion or appointment to SGT/E-5.
	b.  Although he provided a copy of his unit's 30 November 1971 promotion standing list which shows he was recommended for promotion and placed on an order of merit list, this list did not indicate an automatic promotion.  In any case, promotions of enlisted personnel to grades E-5 were announced in orders.  The applicant may have been an acting SGT, but there is no evidence of record and he provided none to show he had been promoted to SGT.

	c.  There is no evidence in the available records nor did he provide documentation to substantiate his promotion or appointment to SGT/E-5.  In the absence of promotion orders and/or the authority for this promotion, there is insufficient evidence to grant him the requested relief.

3.  With respect to his MOS:

	a.  The evidence of record shows he was initially trained in MOS 11C.  However, in April 1971 and in connection with his reassignment to the 229th Assault Helicopter Battalion, MOS 64A became his PMOS while MOS 11C became his SMOS.

	b.  He then performed duties in MOS 67N and formally requested this MOS be designated as his SMOS.  Accordingly, his higher headquarters issued orders withdrawing the original SMOS 11C and awarding him SMOS 67N.

	c.  The version of the regulation in effect at the time of his separation required an entry of the primary specialty, which in his case was 64A and is correctly shown in item 23 of his DD Form 214.  There was no requirement at the time to list any secondary specialties.

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)                                         AR20090018797



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ABCMR Record of Proceedings (cont)                                         AR20090018797



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