BOARD DATE: 22 September 2009 DOCKET NUMBER: AR20090007921 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 the records of her deceased husband, a former service member (FSM), to show that he served in Vietnam. 2. The applicant states that her husband stated that he served in Vietnam and that she checked all of his records and could not find anything to show to officials at the Veterans Administration that proves her husband served in Vietnam. 3. The applicant provides a copy of her Certificate of Marriage to the FSM; a copy of the FSM’s Certificate of Death; and a copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 January 1968. 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 30 December 1947, the applicant enlisted in the U.S. Army in Oklahoma City, Oklahoma, for 3 years, in the pay grade of E-1. He successfully completed his training as an administrative specialist. He remained on active duty through a series of continuous reenlistment and extensions. 3. Item 31 (Foreign Service) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he served in Japan from 24 May 1948 through 26 November 1951; he served in Korea from 18 December 1954 through 1 August 1955; and he served in Germany from 14 November 1961 through 27 September 1963. 4. After completing 20 years, 1 month and 1 day of net active service, the applicant was honorably released from active duty (REFRAD) due to obtaining sufficient service for retirement. He was transferred to the United States Army Reserve Control Group (Retired). 5. A review of the available records does not show that the applicant ever served in Vietnam while he was in the Army. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the records of her deceased husband should be corrected to show that he served in Vietnam. 2. Her contentions have been noted. However, there is no evidence in the available record, nor has the applicant submitted any evidence, to show that the FSM served in Vietnam at any time during his 20 plus years of service in the U.S. Army. 3. His records show that while he was in the Army his foreign service included Japan, Korea and Germany. In the absence of evidence to the contrary, it must be presumed that his records are correct in regard to his foreign service. 4. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 5. In view of the foregoing, there is no basis for granting the applicant’s 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 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) AR20090007921 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1