BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120017166 


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:

* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) – corporal (CPL)/E-4 or sergeant (SGT)/E-5 vice specialist four (SP4)/E-4
* item 23a (Specialty Number and Title) – military occupational specialty (MOS) 13F (automatic weapons crewman) vice 13E (cannon fire direction specialist)

2.  The applicant states:

	a.  He would like his MOS changed to 13F and his rank changed to CPL or SGT in recognition for the duties he performed which should have been performed by a higher-ranking officer or noncommissioned officer (NCO).  He does not request monetary compensation.

	b.  On 28 August 1970 when he arrived at Battery C, 8th Battalion, 4th Artillery, he held MOS 13A (Field Artillery Basic) and he was assigned to the fire direction center in MOS 13E.  On 1 October 1970, he became an artillery forward observer as a private first class (PFC), a job normally held by a first lieutenant.  He was attached to the 2nd Platoon, 3rd Battalion, 5th Cavalry, 9th Infantry Division, as a forward observer, a job he held for 8 months.

	c.  During this time, he still held MOS 13A, he was wounded twice, and he was awarded the Silver Star.  He held a Confidential security clearance and fired missions from inside Laos and North Vietnam.  On 1 June 1971, he became an unofficial liaison officer (LNO)/NCO when he was attached to Headquarters Battery, 2nd Battalion, 320th Artillery, 101st Airborne Division.  While still holding MOS 13A as an SP4, he performed the duties of a staff sergeant (SSG).  After Vietnam, he was assigned to Headquarters and Headquarters Battery (HHB), 1st Battalion, 6th Field Artillery.  At that time his MOS was changed to 13E.  Again he was assigned as an unofficial LNO/NCO and his clearance was upgraded to Secret.

	d.  His date of rank to SP4 was 20 March 1971 and he was released from active duty on 3 July 1973.  Although his enlisted efficiency reports were excellent or above average, he was never promoted above SP4.  On 10 October 1975, he was discharged from the U.S. Army Reserve (USAR) as an SP4 in MOS 13E.  He believes the fact that he was attached to different units during his service in Vietnam was the reason he was never promoted.  He still cannot understand why he was never promoted when he was stationed at Fort Hood, TX.

3.  The applicant provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* General Orders Number 1041
* letter of appreciation
* two DA Forms 2166-4 (Enlisted Efficiency Report)
* DA Form 873 (Certificate of Clearance and/or Security Determination)

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.  Having prior active service, the applicant's records show he enlisted in the Regular Army on 23 June 1970 in the rank of PFC and he held MOS's 13A and 13E.

3.  On or about 10 August 1970, he was assigned to the U.S. Army Personnel Center, Fort Lewis, WA, for assignment to Vietnam.

4.  On 31 August 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification of being absent without leave (AWOL) from his assigned unit from 15 to 29 August 1970.  His punishment included reduction to private/E-2.

5.  It is unclear when he was advanced to PFC again as his records show his date of rank to PFC as 10 April 1970 (the original promotion date).

6.  He served in Vietnam from 30 August 1970 to on or about 28 August 1971.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned as follows during his service in Vietnam:

* 11 September-31 December 1970, duty MOS (DMOS) 13E, principal duty as chart operator, Battery C, 8th Battalion, 4th Artillery
* 1 January-28 May 1971, DMOS 13A, principal duty as radio/telephone operator (RTO), Battery C, 8th Battalion, 4th Artillery
* 29 May-19 August 1971, DMOS 13A, principal duty as RTO, HHB, 8th Battalion, 4th Artillery

7.  The applicant provides General Orders Number 1041, dated 30 June 1971, issued by Headquarters, XXIV Corps, awarding him the Silver Star for gallantry in action on 23 February 1971.

8.  He was advanced to the rank of SP4 on 20 March 1971.

9.  Item 22 (MOS) of his DA Form 20 shows he was awarded primary MOS (PMOS) 13A on 6 March 1970 and PMOS 13E on 20 March 1971.

10.  He again received NJP under the provisions of Article 15, UCMJ, on:

* 26 April 1972, for one specification each of disobeying a lawful order and wrongfully appearing at an off-post restaurant in an unkempt uniform
* 4 January 1973, for one specification of violating a lawful regulation

11.  He was honorably released from active duty on 3 July 1973 in the rank of SP4 and he was transferred to the USAR.  He completed 2 years, 11 months, and 27 days of creditable active service during the period under review with 14 days of lost time due to being AWOL.

12.  Items 5a and 5b of his DD Form 214 for the period ending 3 July 1973 contain the entries "SP4" and "E-4," respectively.  Item 23a shows his MOS as 13E.

13.  There are no orders in his records that show he ever served as a CPL/E-4 or was ever promoted to SGT/E-5.  There is no evidence in his record that shows he went before a promotion board and was recommended for promotion to SGT/E-5.

14.  His records do not contain orders awarding him MOS 13F or show he attended school for and/or was trained in MOS 13F.  His DA Form 20 does not show he ever served in DMOS 13F.

15.  The applicant provides a letter of appreciation, undated, from the Commander, 3rd Squadron, 5th Cavalry, wherein the commander thanked the applicant for his outstanding performance of duty while serving as a clearance specialist on the artillery liaison team for 2 weeks.  The commander states that based on the applicant's demonstrated ability to fully function in an outstanding manner as a liaison SGT, a position that the table of organization and equipment specifies should be an SSG, he would immediately promote him to SGT/E-5 if he had the authority.

16.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated for enlisted personnel in grades E-3 through E-9, appointments, grade reductions, and grade restorations were announced in routine orders.  Orders may be issued for promotion to grades E-5 and E-6 before the effective date provided the Soldier will equal or exceed the announced Department of the Army promotion point cutoff score by the date of his/her promotion effective date.

17.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparation of the DD Form 214.  It states 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 states to enter the rank/grade held at the time of separation in items 5a and 5b and to enter the MOS held at the time of separation in item 23a.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was advanced to the rank of SP4 on 20 March 1971, less than 1 month after he was awarded the Silver Star.  There is no evidence that shows he was assigned to a CPL position or was appointed to the rank of CPL.  There is no evidence that shows he was considered by an E-5 promotion board and was recommended for promotion to SGT.  His records are void of orders showing he was promoted to SGT.  His DD Form 214 correctly shows his rank/grade as SP4/E-4, the rank/grade he held at the time of his release from active duty.

2.  The evidence of record also shows he was awarded MOS 13E on 20 March 1971.  Although his service may have been commendable and he served in a variety of duties/positions, there is no evidence that shows he ever served in DMOS 13F or that he attended school for, was trained in, or was awarded MOS 13F.  He held MOS 13E at the time of his release from active duty which is correctly shown on his DD Form 214.

3.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20120017166



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ABCMR Record of Proceedings (cont)                                         AR20120017166



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