IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110010312 


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, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his rank/grade as specialist four (SP4)/E-4 or sergeant (SGT)/E-5 and for his lost time to be removed from his DD Form 214.  

2.  The applicant states he never got the recognition he deserved while serving at Headquarters and Headquarters Company (HHC), 1st Battalion, 32nd Infantry, Korea, where he worked in an E-6 slot.  He was not expecting to get paid for doing an E-6 job but he did hope to get promoted to E-4 or E-5.  Instead, he was misunderstood and his life was made a living hell.  He got an honorable discharge and his rank and special court-martial should have not been included on his DD Form 214.

3.  The applicant provides his DD Form 214, DD Form 215 (Correction to DD Form 214), DA Form 2166-5 (Enlisted Efficiency Report), DA Form 2173 (Statement of Medical Examination and Duty Status), and a Department of Veterans Affairs (VA) summary of benefits letter.

4.  On 20 June 2011, a letter, dated 8 June 2011, was received from the applicant wherein he stated he was concerned about a recent letter he received from the VA about personal data that was stolen.  He requested his letter be forwarded to the person responsible for the VA letter he received as he is looking for an update on the status.



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 enlisted in the Regular Army on 24 July 1973 and he held primary military occupational specialty (MOS) 11B (Light Weapons Infantryman) and secondary MOS 63B (Wheeled Vehicle Mechanic).  He was awarded the National Defense Service Medal and the Armed Forces Expeditionary Medal.

3.  He was assigned to HHC, 1st Battalion, 32nd Infantry, Korea from 1 January 1974 through 24 January 1975.

4.  On 5 December 1974, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for wrongfully using reproachful words, gestures, and for pushing and grabbing the clothing of another Soldier.  The punishment imposed was the forfeiture of $60.00 for one month, 14 days restriction, and reduction from the rank/grade of private first class/E-3 to private (PV2)/E-2.

5.  He was assigned to HHC, 3rd Brigade, 4th Infantry Division, Fort Carson, CO, from 18 February through 8 August 1975.

6.  On 19 May 1975, he was placed in pre-trial confinement pending a special court-martial.

7.  On 6 June 1975, he pled guilty to and was convicted by a special court-martial for failing to go to his appointed place of duty on 4 April 1975, unlawfully striking another Soldier in the face with his fist on 11 March 1975, and unlawfully striking another Soldier in the face with his fist and on the back with a pool cue on 22 February 1975.  He was sentenced to forfeiture of $100.00 for one month, 35 days of confinement, and reduction from the rank/grade of PV2/E-2 to private (PV1)/E-1.
8.  On 19 June 1975, the adjudged sentence was approved and the portion of confinement that had not occurred was suspended until 13 August 1975.

9.  On 15 July 1975, a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) against him was approved by the appropriate authority.   He was not recommended for further military service due to his attitude and behavior that alienated him from his peers and leaders and created a climate of hostility throughout the company.  

10.  He was honorably released from active duty on 8 August 1975 in the rank/grade of PV1/E-1 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.  He completed 1 year, 11 months, and 28 days of creditable active service with 18 days of lost time.

11.  Item 6a (Grade, Rate or Rank) and item 6b (Pay Grade) of the DD Form 214 he was issued shows "PV1" and "E-1" respectively.

12.  Item 27 (Remarks) of his DD Form 214 shows "18 days lost under 10 U.S. Code 972 from 19 May - 5 June 1975, inclusive."

13.  The applicant provides DA Form 2166-5, dated 9 January 1975, wherein he was rated for his duty performance while serving in HHC, 1st Battalion, 32d Infantry, as a wheeled vehicle mechanic in duty MOS 63B1O.  His rater, a chief warrant officer four, stated the applicant performed his duties well and contributed greatly to the unit maintenance effort when the battalion was short of qualified personnel.  The rater also stated the applicant did not get along with his co-workers or supervisors because of his outspoken nature.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The version of the regulation in effect at the time stated, in pertinent part, the purpose of the separation document is to provide the individual with documentary evidence of his or her military service upon retirement, discharge, or release from active military service or control of the Army.  In item 6a and item 6b enter the active duty grade or rank and pay grade at the time of separation.  In item 18 identify any non-creditable time lost under 10 U.S. Code 972.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reduced to the rank/grade of PV1/E-1 on 19 June 1975 and he held this rank through his separation date of 8 August 1975.  In addition, he had 18 days of lost time due to his pre-trial confinement from 19 May through 5 June 1975.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  As such, his DD Form 214 correctly reflects his rank/grade as PV1/E-1 and the 18 days of lost time he incurred.  Therefore, there is no basis for granting the applicant's requested relief.

2.  With respect to his request that his 8 June 2011 letter be forwarded to the VA, that action is not within the purview of this Board.  

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)                                         AR20110010312





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ABCMR Record of Proceedings (cont)                                         AR20110010312



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