IN THE CASE OF:	  

		BOARD DATE:	    19 May 2011

		DOCKET NUMBER:  AR20100028264 


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 item 12 (Last Duty Assignment and Major Command) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 1 September 1972, to show "Company C, 1st Battalion, 38th Infantry, 2nd Infantry Division" vice "Company A, U.S. Army Armor Center (USAARMC), 1st U.S. Army."

2.  The applicant states he was assigned to Company C, 1st Battalion, 38th Infantry, 2nd Infantry Division, in Korea in early 1970.  He forwarded all his assignment orders along with his DA Form 201 (Military Personnel Records Jacket) to the Department of Veterans Affairs (VA) Regional Office, Little Rock, AR, but the VA does not believe him because his DD Form 214 does not reflect this unit.  His DD Form 214 lists a unit he never even heard of.  He needs to show he was exposed to Agent Orange while guarding an ammunition dump when assigned to the unit listed above.

3.  The applicant provides his DD Form 214 and orders.

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's records show he enlisted in the Regular Army on 2 September 1969 and he held military occupational specialty 76Y (Supply Specialist).

3.  He was assigned to Company C, 1st Battalion, 38th Infantry, 2nd Infantry Division, Korea, from 18 March 1970 through 18 April 1971.

4.  He was assigned to Company A, USAARMC, 1st U.S. Army, Fort Knox, KY, from 25 May 1971 through 31 August 1972.

5.  He was honorably released from active duty on 1 September 1972 and assigned to the U.S. Army Reserve to complete his remaining Reserve obligation.

6.  Item 12 of his DD Form 214 shows the entry "Company A, USAARMC, 1st U.S. Army."  This form also shows he completed 3 years of active service with 1 year, 1 month, and 1 day of foreign service.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and 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.  Chapter 2 of Army Regulation 635-5, in effect at the time, stated to enter the last duty assignment and major command the Soldier was assigned to at the time of his release from active duty in item 12 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides a record of active duty service at the time of release from active duty.  Item 12 of the applicant's DD Form 214 correctly reflects his last unit of assignment as Company A, USAARMC, 1st U.S. Army, and contains no errors.  Therefore, there is no basis for granting the applicant's requested relief.

2.  Nevertheless, the applicant may use this Record of Proceedings to confirm his assignment to Company C, 1st Battalion, 38th Infantry, 2nd Infantry Division, Korea, from 18 March 1970 through 18 April 1971.

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)                                         AR20100028264



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ABCMR Record of Proceedings (cont)                                         AR20100028264



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