IN THE CASE OF:
BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100008221
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 his unit be changed to Battery B, 2nd Battalion (Airmobile), 320th Artillery, on his 28 December 1970 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states his DD Form 214 incorrectly lists Battery A instead of Battery B.
3. The applicant provides a copy of his DD Form 214; memorandum, subject: Rest and Relaxation (R&R) Allocations for November 1970; and two newspaper articles.
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 25 June 1969. He served in the Republic of Vietnam from 28 November 1969 to 27 December 1970. He was honorably released from active duty on 28 December 1970.
3. Item 12 (Last Duty Assignment and Major Command) of the applicant's DD Form 214 lists Battery A, 2nd Battalion (Airmobile), 320th Artillery.
4. A newspaper article titled "Commendation Medal for [Applicant]" stated that he was awarded a commendation medal for his meritorious achievement in the Republic of Vietnam during the period 28 November 1969 to 31 January 1970. The article lists the applicant's assignment as Battery B, 2nd Battalion (Airmobile), 320th Artillery. Another newspaper article titled "Men in Service," dated 20 April 1970, also lists the applicant's unit of assignment as Battery B.
5. In the memorandum, subject: R&R Allocations for November 1970, dated 7 October 1970, the applicant's unit is listed as Battery B, 2nd Battalion.
6. The applicant's DA Form 20 (Enlisted Qualification Record) shows that effective 22 March 1970 the applicant was assigned to Battery A, 2nd Battalion, as a cannoneer.
7. There are numerous promotion and award orders in the applicant's records that list his unit as either Battery A or B, but there are no assignment orders.
8. Special Orders Number 345, dated 11 December 1970, show the applicant's unit as Battery A, 2nd Battalion, in the standard name line. This order reassigned the applicant to the transfer point. However, his installation clearance form shows the same order number as the authority for his departure, but his organization is listed as Battery B, 2nd Battalion, 320th Artillery.
9. Army Regulation 635-5 (Separation Documents) provides guidelines for the preparation of the DD Form 214. The regulation states that all available records will be used for the preparation of this form. The DD Form 214 provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The regulation provides a brief description of each entry made on the form. In item 12, the preparer is to enter the individual's current unit of assignment and title of the major command or agency having jurisdiction over that organization.
DISCUSSION AND CONCLUSIONS:
1. Although there are numerous documents in the applicant's records that show his unit of assignment as Battery B, there are no orders to verify this assignment.
His DA Form 20 shows he was assigned to Battery A in March 1970. His orders assigning him to the separation transfer point, dated 11 December 1970, listed Battery A as his unit of assignment in the standard name line. In the absence of orders assigning him to Battery B the presumption of regularity must be applied. Therefore, his last duty assignment and major command listed on his DD Form 214 appears to be correct.
2. 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 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) AR20100008221
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ABCMR Record of Proceedings (cont) AR20100008221
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