IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006363 


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 his service in Vietnam from 15 November 1969 15 February 1970.  He also requests correction of his pay grade to show E-4 instead of E-1.

2.  The applicant states:

* he served at the U.S. Embassy in Saigon, Vietnam, from 15 November 1969 to 15 February 1970
* the DA Form 1577 (Authorization for Issuance of Awards) and Addendum to DA Form 1577 show his service in Vietnam in 1969-1970
* at the time of his "discharge" his pay grade was E-4, not E-1

3.  The applicant provides:

* two DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552))
* DA Form 1577
* Addendum to DA Form 1577
* DD Form 214 for the period ending 4 November 1971 that shows his rank as "PVT/E-1" [private]
* altered DD Form 214 for the period ending 4 November 1971 that shows his rank/pay grade as "SPC/E-4" [specialist]
* DD Form 215 (Correction to 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 on 12 November 1968 for a period of 3 years.  He served as an infantry direct fire crewman.  He was released from active duty on 4 November 1971 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Fort Bragg, NC, from 10 September 1969 to 4 November 1971.  Item 31 (Foreign Service) of his DA Form 20 is blank.

4.  Item 33 (Appointments and Reductions) of his DA Form 20 shows he was:

* appointed to E-4 effective 9 June 1970
* reduced to E-3 effective 30 April 1971 (Article 15)
* reduced to E-2 effective 27 August 1971 (Article 15)
* reduced to E-1 effective 5 October 1971 (summary court-martial)

5.  The DD Form 214 for the period ending 4 November 1971 contained in his service personnel records shows the following entries:

* item 5a (Grade, Rate, or Rank) – "PVT"
* item 5b (Pay Grade) – "E-1"
* item 6 (Date of Rank) –"5 OCT 71" [5 October 1971]
* item 11d (Effective Date) – "4 NOV 71"
* item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal and Parachutist Badge
* item 22c (Foreign and/or Sea Service) –"0  0  0"

6.  There is no evidence of record that shows he was appointed to pay grade E-4 after 5 October 1971 or prior to his release from active duty on 4 November 1971.

7.  There is no evidence of record that shows the applicant served in Vietnam.

8.  He provides a DA Form 1577, dated 20 June 2001, in support of his claim to having he served in Vietnam that shows he was issued the National Defense Service Medal (award code 34), Parachutist Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar.  This form also shows award codes 20 (Good Conduct Medal) and 38 (Vietnam Service Medal) were circled.

9.  He also provides an Addendum to DA Form 1577, dated 20 June 2001, that indicates he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Campaign Medal with Device (1960).

10.  He provides an altered DD Form 214 with an effective date of 4 November 1971 showing his rank as "SPC" and pay grade as "E-4" in support of his claim that he was "discharged" in pay grade E-4.

11.  The U.S. Army enlisted rank of specialist, abbreviated as "SPC," did not exist prior to 1 October 1985 when the specialist five and specialist six ranks were eliminated and the specialist four rank was re-designated as simply "specialist."

12.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

13.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.

14.  Army Regulation 600-8-22 states the Republic of Vietnam Gallantry Cross with Unit Citation is awarded by the Vietnamese government for valorous combat achievement.



DISCUSSION AND CONCLUSIONS:

1.  Although he contends he served in Vietnam from 15 November 1969 to 15 February 1970, there is no evidence of record and the applicant provided no evidence that shows he served in Vietnam.  The DA Form 1577 and Addendum to DA Form 1577 provided by the applicant do not show he served in Vietnam.  Therefore, there is insufficient evidence with which to amend his DD Form 214 to show he served in Vietnam.

2.  He contends his pay grade was E-4 at the time of his "discharge."  However, his military records show he was reduced from E-4 to E-3 on 30 April 1971, from E-3 to E-2 on 27 August 1971, and from E-2 to E-1 on 5 October 1971.  There is no evidence of record that shows he was appointed to pay grade E-4 after 5 October 1971 or prior to his release from active duty on 4 November 1971.  His final reduction is properly reflected in items 5a, 5b, and 6 of his DD Form 214.  Therefore, there is insufficient evidence with which to amend his rank as shown on his DD Form 214.

3.  He provides an altered DD Form 214 with an effective date of 4 November 1971 showing his rank as "SPC" and pay grade as "E-4" in support of his claim that he was "discharged" in pay grade E-4.  The U.S. Army enlisted rank of specialist, abbreviated as "SPC," did not exist prior to 1 October 1985 when the specialist five and specialist six ranks were eliminated and the specialist four rank was re-designated as simply "specialist."  Therefore, he could not have been released from active duty in the rank and pay grade of SPC/E-4 in 1971.

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 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)                                         AR20110006363



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ABCMR Record of Proceedings (cont)                                         AR20110006363



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