BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019732 


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) to show in:

* Item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) his rank and pay grade as specialist five (SP5)/E-5
* Item 22 (Statement of Service) the entry 2 years, 9 months, and 29 days
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) award of the Purple Heart

2.  He states he:

* was wounded at Dam Ha, Vietnam and he was evacuated to Yokota Air Base in Japan
* was discharged from the 249th General Hospital
* wasn’t indicated for award of the Purple Heart and never received any award orders
* wanted to only go home at the time of his injury

3.  He provides:

* his DD Form 214
* an Honorable Discharge Certificate
* a copy of Special Orders Number 178, dated 25 August 1969


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 request for award of the Purple Heart was originally considered by the ABCMR on 18 October 2007.  Army Regulation 15-185 (ABCMR), paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Since the applicant’s request for the Purple Heart was not received within one year of the ABCMR's original decision and he did not provide any new evidence in support of his request for the Purple Heart, this portion of his request will not be discussed further in these Proceedings.

3.  His DD Form 4 (Enlistment Record - Armed Forces of the United States) shows he enlisted in the Regular Army on 10 January 1967.

4.  Special Orders Number 268, dated 19 November 1968, show he was promoted to SP5/E-5, effective 19 November 1968. 

5.  On 25 April 1969, he was convicted by a summary court-martial of being absent without leave (AWOL) from 26 February 1969 to 3 March 1969 (5 days).  Summary Court-Martial Order Number 4, issued by Headquarters, 1st Battalion, 40th Artillery, dated 26 April 1969, shows he was sentenced to reduction to specialist four (SP4)/E-4 and forfeiture of $50.00 pay per month for one month.

6.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced from SP5 to SP4 on 25 April 1969.


7.  Special Orders Number 239, dated 27 August 1969, show he was released from active duty on 27 August 1969 as an SP4 and he was transferred to the 
U.S. Army Reserve (USAR) Control Group (Standby).

8.  His DD Form 214 shows in:

* Items 5a and 5b his rank and pay grade as SP4/E4
* Item 14 (District Area Command or Corps to Which Reservist Transferred) he was transferred to USAR Control Group (Reinforcement)
* Item 22 the entry 1 year, 7 months, and 13 days
* Item 30 (Remarks) he had 5 days of lost time

9.  Letter Orders Number 12-1481280, issued by the U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, dated
19 December 1972, show he was discharged from the USAR Control Group on 
1 January 1973 as an SP5.  

10.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It further states for:

* Item 22a(1) (Net Service This Period), enter total service completed between the dates shown in item 17c (Date of Entry) and 11d (Effective Date (of separation)), less time lost
* Item 22a(2) (Other Service), enter all prior service excluding any service in Item 22a(1) including any period served in the USAR or ARNGUS (Army National Guard of the United States) as a reservist not on active duty during current enlistment
* Item 22a(3) Total (Line (1) plus Line (2))
* Item 22b (Total Active Service), enter total active service the individual has completed beginning with the earliest period of active service up to and including current period of active duty, less any period served in the USAR or ARNGUS not on active duty, and less time lost

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SP5 on 19 November 1968.  


2.  He was convicted by a summary court-martial on 25 April 1969 and he was reduced to SP4.  His DD Form 214 shows he was released from active duty on 27 August 1969 in the rank/grade of SP4/E-4.  His service record does not indicate he was promoted back to SP5/E-5 prior to his separation.

3.  Based on the governing regulation, his DD Form 214 is meant to reflect his status as of his last day of active duty on 27 August 1969.  As of that date, he was an SP4/E-4.  Therefore, there is no basis for correcting his DD Form 214 to show his rank/grade as SP5/E-5.

4.  The evidence of record shows he served in the Regular Army from 10 January 1967 through 27 August 1969 with 5 days of lost time.  This is a period of 2 years, 7 months, and 18 days minus the 5 days of lost time for an aggregate of 2 years, 7 months, and 13 days of total active service.

5.  However, his DD Form 214 shows he completed only 1 year, 7 months, and 13 days of net/total active service.  Therefore, it would be appropriate to amend items 22a(1), 22a(3), and 22b of his DD Form 214 to show the entry 2 years,
7 months, and 13 days.

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 from Items 22a(1), 22a(3), and 22b of his DD Form 214 the entry
"1  7  13" and replacing them with the entry "2  7  13."

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 correcting his DD Form 214 


to show his rank/grade as SP5/E-5 and his net active service as "2 years,
9 months, and 29 days."



      _________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)                                         AR20100019732



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ABCMR Record of Proceedings (cont)                                         AR20100019732



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