RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060003513


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
give him active duty service credit from 19 March 1971 to 12 August 1971 to
show he completed 2 years total active duty service.

2.  The applicant states he was told by the recruiting officer in Vietnam
that if he stayed over two extra months, he would have less than five
months left to serve. The recruiting officer told him he would be released
with two years active duty to count towards his state retirement with
Tennessee.  He received the full four years educational benefits so he
thought everything was in order until he went to the state retirement board
to retire from teaching.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 18 March 1971.  The application submitted in this case is dated 28
February 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Department of the Army, Armed Forces Examining and Entrance Station,
Special Orders Number 156, dated 13 August 1969, show the applicant was
inducted into the Army on 13 August 1969.  His Record of Induction (DD Form
47) shows he was inducted into the Army on 13 August 1969.  At the time of
his induction, he signed an Acknowledgement of Service Obligation (6-Year
Acknowledgement) which shows his date of induction as 13 August 1969 for
two years active duty.

4.  The applicant completed basic combat training at Fort Campbell,
Kentucky and was reassigned to Fort Huachuca, Arizona for advanced
individual training (AIT).  Upon the successful completion of AIT, he was
awarded military occupational specialty 94B (Cook).
5.  The applicant was assigned to the 285th Transportation Company in
Vietnam on 10 January 1970.

6.  He was promoted to the rank of specialist four on 6 March 1970.

7.  Headquarters, U.S. Army Support Command Qui Nhon Special Orders Number
058, dated 27 February 1971, reassigned the applicant to the U.S. Army
Transfer Station at Fort Lewis, Washington for separation processing with a
DEROS [Date Eligible for Return From Overseas] date of 17 March 1971.

8.  Headquarters, U.S. Army Personnel Center, Special Orders Number 77,
dated 18 March 1971, released the applicant from active duty with an
effective date of 18 March 1971.  He was transferred to the U.S. Army
Reserve Control Group (Annual Training) on the following date.

9.  The applicant's DD Form 214 shows he was inducted into the Army on
13 August 1969 and was separated from active duty on 18 March 1971.  He
completed 1 year, 7 months, and 6 days total active service during this
period.

10.  Army Regulation 635-5 (Separation Documents) governs the preparation
of the DD Form 214.  It states that 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.  In the version in effect at the
time, it directed that the date of induction would be entered in item 10(c)
and the effective date of separation would be entered in item 11(d) of the
DD Form 214.

11.  Army Regulation 635-200 (Personnel Separations), in effect at the
time, provided for the separation from active duty of inductees if, upon
returning from a short tour area, they had less than 150 days remaining to
their expiration term of service (ETS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested, in effect, that his records be corrected to
show he served on active duty from 19 March 1971 to 12 August 1971 to show
he completed 2 years total active duty service.  He contended that he was
told by officials in Vietnam that if he stayed over two extra months, he
would have less than five months left to serve and then he would be
released with two years active duty to count towards his state retirement
with Tennessee.

2.  It was true that the applicant’s 2-month extension of his normal 12-
month tour in Vietnam left him with less than 150 days remaining until his
ETS, thereby making him eligible for an early separation from active duty.
However, there were no provisions for a member to be credited with active
duty service the member did not perform.

3.  The Army is not liable for the erroneous actions of its officers,
agents, or employees, even though committed in the performance of their
duties.  In any case, the applicant provides no evidence to show that
officials in Vietnam gave him that information.  Army officials would not
know in the normal course of their duties what employment/retirement
policies the individual States offered.  In addition, the applicant
provides insufficient evidence to show that, even if he had been given this
erroneous information, a speculative State retirement 20 years or more in
the future was the only reason that he chose to extend his Vietnam tour and
separate from the Army early.

4.  The applicant's DD Form 214 was prepared to properly reflect the date
of his induction as 13 August 1969 and the effective date of his separation
as 18 March 1971.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 March 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 17 March 1974.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

PM______  DG______  RV______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  Patrick McGann________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003513                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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