IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007795 


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 (Report of Transfer or Discharge) to show a temporary duty (TDY) assignment in Vietnam.  He also requests correction of his rank to show sergeant (SGT)/E-5 instead of specialist five (SP5)/E-5.

2.  The applicant states:

* his 201 file is in error and does not show his 2 1/2 months in Vietnam in 1968
* his rank should be SGT instead of SP5
* there is no record of his assignment from 1 June 1969 to 10 July 1969
* in December 1967 he was relieved from his duty with the 66th Military Police Detachment at Oakland Army Base, CA
* there is no record of his activities on his DD Form 214 until the first week in April 1968
* the daily reports should indicate he was TDY in Vietnam
* he was part of OPS 33 (psyops) in Vietnam
* he wore plain jungle fatigues without any markings
* no military identification tags were worn
* his unit was made up of forced recon Marines, Navy Seals, South Vietnamese Special Forces, and U.S. Special Forces
* they had units operating in North Vietnam, Cambodia, and Laos


* he recalls the mention of Black Ops/mission dealing with his search and destroy missions
* they were ordered never to carry any personal items or anything to identify who they were

3.  The applicant provides:

* 13 enclosures outlined on a document entitled "Attachments"
* a self-authored letter, dated 30 March 2010

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 enlisted in the Regular Army on 3 July 1967 for a period of 
3 years.  His DA Form 20 (Enlisted Qualification Record) shows he served as a military policeman assigned to various units in Oakland, CA from 10 November 1967 through 15 March 1970.  On 2 July 1970, he was released from active duty (REFRAD) in the rank of SP5 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

3.  Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 shows the entry "SP5."  Item 5b (Pay Grade) of his DD Form 214 shows the entry "E5."  Item 6 (Date of Rank) of his DD Form 214 shows the entry "13 DEC 68."  Item 22c (Foreign and/or Sea Service) of his DD Form 214 shows the entry "0  0  0."

4.  A DA Form 1 (Morning Report), dated 17 January 1968, for the 66th Military Police Platoon (Service), Oakland Army Base shows the applicant was reassigned to the Military Traffic Management and Terminal Service, Oakland Army Base.


5.  Discharge orders show the applicant's rank as SP5.

6.  Item 31 (Foreign Service) of the applicant's DA Form 20 is blank.

7.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was appointed to the temporary rank of SP5, effective 13 December 1968.  This form also shows he was appointed to SGT, effective 13 December 1970; however, this entry is lined out.  He was also REFRAD prior to the effective date.

8.  In support of his claim to show his TDY assignment in Vietnam, the applicant provided:

* his U.S. Military Assistance Command  (MACV) Form 270-R (Headquarters, MACV, Vietnam Malaria Debriefing)
* his blanket TDY order from Oakland Army Base to any point within CONUS [Continental United States] during the period 4 January 1968 to
1 June 1968
* a photograph of himself with a Marine showing the Vietnam Campaign Ribbon and Combat Infantryman Badge on his shirt
* a copy of his Vietnam Ration Card
* a copy of his MACV identification card
* a copy of his MAC-SOG identification card
* a copy of Vietnamese currency
* a copy of a calendar with days marked while in Vietnam
* copies of letters from medical personnel documenting his Post Traumatic Stress Disorder diagnosis
* a self-authored chronology of traumatic events
* letters of support from his sister and wife

9.  In support of his claim to correct his records to show his rank as SGT, the applicant provided Unit Order Number 10, issued by the 300th Military Police Detachment, Oakland Army Base, dated 11 July 1969.  This order shows he was appointed to the acting noncommissioned officer (NCO) grade of SGT and the grade of SP5 was terminated.  The authority for this action shows Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-11.

10.  Army Regulation 635-5 (Personnel Separations/Separation Forms) governs the preparation of the DD Form 214.  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 oversea theater in which the service was performed would be entered in item 22c.  Additionally, 


there is no provision to show temporary duty assignments or any assignment other than the unit of assignment upon separation on the DD Form 214.

11.  Army Regulation 600-200 prescribed the policies and procedures for enlisted personnel management, including promotions and reductions.  Paragraph 7-11, in effect at the time, stated company, troop, battery, and separate detachment commanders may appoint qualified individuals as acting corporals, E-4; and acting sergeants, E-5, to serve in position vacancies existing in their units of their present or higher grade, including those resulting from temporary absences of assigned NCO's.  For appointments to acting corporals, E-4; and acting sergeant, E-5; the individual being appointed may not be more than one grade lower than the grade to which he is being appointed.  Appointment of acting NCO will be announced in orders using TC 423 format.

12.  This regulation further stated an acting NCO's status will be terminated:

   a.  At the discretion of the unit commander who made the appointment.

   b.  Upon assignment of a regularly promoted noncommissioned officer to the position.

   c.  When casual groups reach their destination.

   d.  Upon reassignment to another unit.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requests correction of his DD Form 214 to show a TDY assignment in Vietnam in 1968, the governing regulation contains no provision to show any assignment other than the unit of assignment upon separation on the DD Form 214.  In addition, notwithstanding the documents provided by the applicant, there is no evidence of record which shows he served in Vietnam.  If the applicant can provide pay records or morning reports showing he was TDY in Vietnam, he may apply for reconsideration.

2.  The applicant contends his rank was SGT.  Although he provided unit orders which show he was appointed as an acting NCO to the grade of SGT on 11 July 1969, the entry in item 33 of his DA Form 20 shows his appointed grade to SGT was lined out.  His REFRAD orders also show his rank as SP5.  Additionally, per Army Regulation 600-200, an acting NCO's status will terminate upon reassignment to another unit.  The applicant was subsequently reassigned to the U.S. Army Personnel Center Transfer Station, Oakland for the purpose of separation processing, thereby automatically terminating his acting NCO status.
3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100007795



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)