IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013224 


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 that his 24 November 1971 DD Form 214 (Report of Transfer or Discharge) be corrected.

2.  The applicant states the only thing that is correct on his DD Form 214 is his name and service number.  Specifically, he believes the character of his discharge is wrong and his military occupational specialty (MOS) is wrong.

3.  The applicant provides a copy of a 27 November 1969 DD Form 214.

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 for 3 years on 28 July 1967.  He completed training and was awarded MOS 63C (General Vehicle Repairman).
3.  The applicant's 27 November 1969 DD Form 214 that is contained in his Official Military Personnel File (OMPF) shows the following:

* promotion to specialist five (SP5) (E-5), effective 31 January 1969
* an Army Service Number (ASN) of RAxxxxx95 
* a Social Security Number (SSN) of xxx-xx-xx34
* honorable discharge for the convenience of the government 
* a separation program number (SPN) of "313" - discharge for the purpose of immediate reenlistment
* MOS 63C
* net service this period, 2 years and 4 months
* foreign service, 1 year and 7 months
* award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Marksman Marksmanship Qualification Badge with Rifle Bar

4.  The copy of the 27 November 1969 DD Form 214 provided by the applicant shows [in a different script and font from all other entries] the additional awards of the Bronze Star Medal, Combat Infantryman Badge, and two Purple Hearts. 

5.  The available record does not contain a DA Form 20 (Enlisted Qualification Record) recording this period of service.

6.  The applicant was absent without leave (AWOL) from 16 January 1970 through 3 January 1971 (352 days) and placed in military confinement from 4 January 1971 through 25 February 1971 (51 days).

7.  On 12 February 1971, a special court-martial convicted the applicant of being AWOL from 16 January 1970 through 3 January 1971.  He was sentenced to a forfeiture of $50.00 pay for 5 months, 4 months in confinement, and to be issued a bad conduct discharge (BCD).

8.  On 23 February 1971, the court-martial authority approved the sentence but deferred execution of the forfeiture and unserved portion of the confinement until the sentence was ordered into execution.  The applicant was placed on excess leave without pay pending completion of the appellant review. 

9.  On 5 May 1971, the United States Army Court of Military Review affirmed the findings of guilty and sentence.

10.  Special Court-Martial Order Number 23, dated 18 May 1971, states the provisions of Article 71(c) having been complied with, the sentence was to be executed.  The unexecuted portion of the sentence to confinement for
4 months and a forfeiture of $50.00 pay for 5 months was remitted.

11.  The applicant was discharged with a BCD on 24 November 1971.
This DD Form shows the following in:

* block 2 an ASN of RAxxxxx95 
* block 3 a SSN of xxx-xx-xx34
* block 5a and 5b rank/pay grade private (PV1/E-1) 
* block 6 a date of rank of 24 November 1971
* block 11a bad conduct discharge 
* block 11c an SPN of "292"  [discharge by reason of court-martial] 
* block 17 first enlistment
* block 19 grade at entry of PV1 (E-1)
* block 22a(1) net service this period, 3 years, 2 months, and 18 days
* block 22a(2) no other service
* block 22a(3) total service, 3 years, 2 months, and 18 days
* block 22b total active service, 3 years, 2 months, and 18 days
* block 22c no foreign service recorded
* block 23a MOS 57A (Duty Soldier)
* block 23b a related civilian occupation of 407.887, Grave Digger 
* block 24 award of only the National Defense Service Medal
* block 40 405 days of lost time 

12.  On 4 August 1975, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his character of service and did not deem it appropriate to change his narrative reason for discharge.

13.  The DA Form 20 of record is, practically speaking, devoid of any pertinent or clarifying information.  

14.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for awards or decorations for the applicant.

15.  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 establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time stated the DD Form 214 was a summary of a Soldier's current period of active service.  It was to provide a brief, clear-cut record of active duty service at the time of release, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the only thing correct on his DD Form 214 is his name and service number.  Specifically, he believes his character of service and MOS are wrong.

2.  During the period the applicant was on active duty, it was the policy to issue a DD Form 214 for each period of enlistment.  For the most part, the information on the form related only to the events that occurred during that period of service.

3.  The applicant initially enlisted on 28 July 1967 and he was discharged on 27 November 1969 for reenlistment and he was properly afforded a DD Form 214 covering this period of service.

4.  The 27 November 1969 DD Form 214 provided by the applicant is not consistent with the OMPF copy of this form.  The official copy does not contain the entries for the Bronze Star Medal, two Purple Hearts, or the Combat Infantryman Badge.

5.  The record does not contain any evidence and the applicant has not provided any evidence that shows he was awarded the Bronze Star Medal, two Purple Hearts, or the Combat Infantryman Badge.  Therefore, it would not be appropriate to correct the 27 November 1969 DD Form 214 to include these awards.

6.  The 24 November 1971 DD Form 214 contains a number of errors that should be corrected as noted below:

* block 17a first enlistment - should read "reenlistment"
* block 17c 28 July 1967 - should show "28 November 1969"
* block 19 PV1, E-1 - should show "SP5, E-5"
* block 22a(1) 3 years, 2 months, and 18 days - should show "10 months, 18 days"
* block 22a(2) no other service -  should show "2 years and 4 months"
* block 24 shows the National Defense Service Medal – It should contain no entries, the National Defense Service Medal was awarded during his earlier period of service and it should only show awards that were earned during the period covered by this DD Form 214
7.  While the 24 November 1971 DD Form 214 does contain a number of errors, the record does not contain any evidence and the applicant has not provided any evidence to show he was not court-martialed, discharged with a BCD, or that the MOS is incorrectly listed.

8.  In view of the foregoing, his DD Form 214 should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entries in the following blocks and adding the entries noted below:

* block 17a reenlistment
* block 17c 28 November 1969
* block 19 SP5, E-5
* block 22a(1) 10 months, 18 days
* block 22a(2) 2 years and 4 months
* block 24 [should contain no entries]

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to any correction in excess of the above noted corrections.  



      _______ _  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)                                         AR20100013224



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ABCMR Record of Proceedings (cont)                                         AR20100013224



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