BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130017141
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) for the period ending 24 December 1969 to show his rank and pay grade as sergeant (SGT)/E-5 and his awards of the Meritorious Service Medal (MSM) and Army Commendation Medal (ARCOM).
2. The applicant states a white male specialist five/E-5 called him a racially-derogatory name and he hit him for saying it. He was then reduced to the rank of corporal/E-4 and his awards of the MSM and ARCOM were taken from him.
3. The applicant provides copies of his DD Forms 214 for the periods ending 9 December 1968 and 24 December 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 enlisted in the Regular Army with a moral waiver on 20 June 1966 for a period of 3 years. He completed basic training at Fort Polk, Louisiana; advanced individual training as a light weapons infantryman at Fort Gordon, Georgia; and airborne training at Fort Benning, Georgia. He was transferred to Fort Bragg, North Carolina, for his first duty assignment.
3. On 3 October 1967, he was transferred to Vietnam with his unit and he was promoted to the rank of sergeant on 1 December 1967.
4. On 12 September 1968, nonjudicial punishment (NJP) was imposed against the applicant for disobeying lawful orders from superior commissioned and noncommissioned officers. His punishment included reduction to the rank of corporal/E-4.
5. He served in Vietnam until 2 October 1968 when he was transferred to Fort Benning, Georgia.
6. On 9 December 1968, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 10 December 1968 for a period of 6 years and assignment to Panama. His DD Form 214 for this period reflects no award of the MSM or ARCOM.
7. On 22 February 1969, he was transferred to Panama. NJP was imposed against him for being disrespectful in language toward a superior noncommissioned officer on 20 May 1969. His punishment included reduction to pay grade E-3.
8. On 25 June 1969, he was convicted by a summary court-martial of being disrespectful toward a superior noncommissioned officer. He was sentenced to hard labor without confinement for 2 weeks, reduction to pay grade E-1, and restriction.
9. On 17 August 1969, he was transferred as a patient to William Beaumont General Hospital at Fort Bliss, Texas.
10. On 24 December 1969, he was released from active duty in pay grade E-2 and he was placed on the Temporary Disability Retired List (TDRL) in pay grade E-5 based on a subsequent grade determination with a 30-percent disability rating.
11. On 30 September 1974, he was removed from the TDRL with entitlement to severance pay.
12. A review of his official records failed to show any evidence of the applicant having been awarded the MSM or ARCOM during his active duty service.
13. Army Regulation 635-5 (Separation Documents), in effect at the time, served as the authority for preparation of the DD Form 214. It provided that the DD Form 214 would reflect information that was in effect at the time of separation or discharge. Information that occurred subsequent to the date of discharge would not be entered retroactively on that form.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions that his DD Form 214 for the period ending 24 December 1969 should be corrected to show he was separated in pay grade E-5 and he was awarded the MSM and ARCOM were noted and found to lack merit.
2. The applicant was separated in pay grade E-2 and was subsequently placed on the TDRL in pay grade E-5 based on a grade determination that E-5 was the highest grade he satisfactorily held. However, his grade at the time of his separation was E-2 and it is properly entered on his DD Form 214.
3. Additionally, the applicant failed to show through the evidence of record and the evidence submitted with his application that he was ever awarded either the MSM or ARCOM.
4. In the absence of evidence to show otherwise, there appears to be no basis to grant his request.
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) AR20130017141
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