IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013414 


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 military records to show his pay grade at the time of his discharge as E-4 or E-5 and award of the Combat Infantryman Badge (CIB).

2.  The applicant states he believes he was overlooked for promotion and wants the CIB for his duty as a forward observer with the infantry.

3.  The applicant provides no additional documentation.

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.  On  26 May 1966, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 31 (Foreign Service):

* Republic of Korea: March to December 1967 (9 months)
* Republic of Vietnam: December 1967 to January 1969 (14 months)

	b.  Item 38 (Record of Assignments):

* indicates he served on active duty from May 1966 to January 1969 and was transferred to the U.S. Army Reserve with the rank of private first class, E-3
* Specific information concerning unit(s) of assignment during 1966-1969 not available

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or discharge) ending on 18 January 1969 shows:

	a.  he served on active duty from 26 May 1966 to 18 January 1969;

	b.  his characterization of service was honorable;

	c.  his last duty assignment was with the 101st Airborne Division in the U. S. Army, Pacific;

	d.  his rank at the time of his released from active duty was private, pay grade E-2; and

	e.  his awards were the:

* National Defense Service  Medal
* Republic of Vietnam Campaign Medal
* Army Commendation Medal
* Parachutist Badge
* Vietnam Service Medal
* Bronze Star Medal


5.  On 14 April 1969, the applicant again enlisted, beginning in the rank of private, pay grade E-2.

	a.  He was a warrant officer candidate assigned at Fort Wolters, Texas from 15 April to 29 July 1969.

	b.  He was absent without leave (AWOL) from on or about 16 August 1969 to on or about 12 January 1970.

	c.  He was assigned to Fort Carson, Colorado, on 13 January 1970.  His record of assignments shows him:

* as a duty Soldier until 4 October 1970
* as a cannoneer from an unknown date to 2 May 1971
* AWOL from 3 May to 31 August 1971
* Confinement from 3 to 30 September 1971

6.  The evidence of record indicates that the applicant requested a discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  The documents effecting the applicant's discharge are not now available.

7.  The applicant's DD Form 214, ending on 30 September 1971, shows:

	a.  his last duty assignment was with the Personnel Confinement Facility, Fort Ord, California;

	b.  his rank at the time of discharge was private, pay grade E-1;

	c.  his characterization of service was under other than honorable conditions (UOTHC); and

	d.  his creditable active duty service totaled 4 years, 3 moths, and 22 days.

8.  Army Regulation 600-8-22 (Military Awards) provides for award of the CIB to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.

	b.  A discharge UOTHC is normally considered appropriate.

	c.  This regulation also provides that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his military records be corrected to show his pay grade at the time of his discharge as E-4 or E-5 and award of the CIB.

2.  The evidence of record clearly shows that the applicant was discharged with a UOTHC characterization of service.  The governing regulation required his pay grade to be reduced to the lowest enlisted grade upon discharge.

3.  The evidence of record clearly shows that he applicant held an artillery MOS.  There is no evidence indicating that he had also held an infantry MOS at any time.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110013414





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ABCMR Record of Proceedings (cont)                                         AR20110013414



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