BOARD DATE: 20 November 2014
DOCKET NUMBER: AR20140007037
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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his rank as sergeant, E-5 and his military occupational specialty (MOS) as 13B4O.
2. The applicant states that his DD Form 214 incorrectly reflects his rank as corporal (CPL) and his MOS as 13A1O and should reflect them as a SGT, E-5 in MOS 13B4O. The proper paperwork was not submitted to higher headquarters to effect the changes that occurred on 31 December 1969.
3. The applicant provides a copy of his DD Form 214 and two pages from his DA Form 20 (Enlisted Qualification Record).
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 was inducted on 14 August 1968. He completed his basic training at Fort Lewis, Washington and his advanced individual training in MOS 13A1O at Fort Sill, Oklahoma before being transferred to Vietnam on 9 January 1969.
3. He was assigned to A Battery, 6th Battalion, 27th Artillery Regiment for duty as an assembler and was advanced to the pay grade of E-4 on 23 August 1969. On 31 December 1969, he was assigned to a 13B4O gunner position.
4. He departed Vietnam on 16 March 1970 and was honorably released from active duty (REFRAD) as an overseas returnee on 17 March 1970. His DD Form 214 issued at the time of his REFRAD shows his rank as CPL E-4 and his MOS as 13A1O.
5. A review of his official records failed to reveal any evidence of the applicant ever being promoted to the pay grade of E-5.
6. Army Regulation 635-5 (Separation Documents) at the time served as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information as it exists in official records at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been carefully considered.
2. Although his records do show that he was slotted in a 13B4O position on 31 December 1969, that in itself does not automatically convey a promotion to E-5 or a change of his MOS.
3. Therefore, in the absence of evidence to show that he was in fact promoted to the pay grade of E-5, 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:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
__________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) AR20140007037
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