RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060011966 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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, correction of his discharge document to show he served in Vietnam from 1 January 1968 to 31 December 1968.

2.  The applicant states, in effect, in December 1967 he was on leave at home in Hawaii and scheduled to depart from Oakland, California, en route to Vietnam.  The applicant also states, in effect, that he checked in at Fort Shafter, Hawaii, and his port of embarkation was changed from Oakland, California, to Hickam Air Force Base, Hawaii, with a departure date of 1 January 1968.

3.  The applicant provides 5 personal statements, dated 9 July 2006, 10 July 2006, 11 July 2006, 15 July 2006, and 1 undated; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 8 September 1970; and DA Form 20 (Enlisted Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
8 September 1970; the date of his release from active duty (REFRAD).  The application submitted in this case is dated 14 August 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.  The applicant's military service records show that he enlisted in Regular Army (RA) for a period of 3 years on 15 September 1967.

4.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments) shows that on
25 September 1967, the applicant was assigned to Company B, 3rd Battalion, 3rd Brigade, Fort Ord, California, as a trainee for the purpose of completing basic combat training.  This item also shows that on 20 November 1967, the applicant was assigned to Company A, 2nd Battalion, 4th Combat Support Training (CST) Brigade, Fort Ord, California, for advanced individual training in military 
occupational specialty (MOS) 36K (Wireman).  Item 22 (Military Occupational Specialties) of this document shows that the applicant was awarded MOS 36K (Wireman) on 16 January 1968.

5.  The applicant's military service records contain a DA Form 2545 (Cryptographic Access Authorization, Briefing Certificates), dated 31 January 1968, that shows, in pertinent part, the applicant was assigned to Company A, 2nd Battalion, 4th CST Brigade, Fort Ord, California.  Part II (Briefing Certificate) of the DA From 2545 shows that the applicant certified he received a Cryptographic Security Briefing from the Crypto Instructor on 20 February 1968.  This document further shows that the applicant authenticated this document with his signature on 20 February 1968.

6.  The applicant's military service records contain a copy Headquarters, U.S. Army Training Center, Infantry and Fort Ord, California, Special Orders Number 40, dated 9 February 1968.  This document shows, in pertinent part, that the applicant was assigned to the U.S. Army Overseas Replacement Station, Fort Lewis, Washington, for assignment to U.S. Army Vietnam with an arrival month of March 1968.

7.  Item 38 (Record of Assignments) of the DA Form 20 shows that the applicant was scheduled to depart en route to Vietnam on 17 February 1968 and again on 30 March 1968; however, these two line entries are lined-thru (i.e., deleted) and this item shows that the applicant actually departed on 13 April 1968 en route to Vietnam.  Item 38 further shows that on 13 May 1968, the applicant was assigned to Headquarters and Headquarters Company, 501st Signal Battalion (Air Cavalry) in Vietnam and departed the unit on 24 April 1969.

8.  Item 31 (Foreign Service) of the DA Form 20 shows that the applicant served 12 months in the Republic of Vietnam from 30 April 1968 through 29 April 1969. Item 39 (Campaigns) of the DA Form 20 shows, in pertinent part, that he participated in 4 campaigns while serving in Vietnam; Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, and TET 69 Counteroffensive.

9.  The applicant's military service records contain a copy of his DD Form 214, with an effective date of 8 September 1970.  Item 30 (Remarks) of this document shows, in pertinent part, the entry "RVN 30 APR 68 - 29 APR 69."  Item 32 (Signature of Person Being Transferred or Discharged) of the DD Form 214 shows that the applicant placed his signature on this document.

10.  In support of his application, the applicant provides five personal statements; one from his mother, two from his brothers, and two from individuals whose relationship to the applicant is not identified in the documents.  All five of the statements state, in pertinent part, "to the best of knowledge [applicant] left for Vietnam on 01/01/68 out of Hickam Air Force Base in Honolulu."

11.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists the Vietnam Conflict campaigns and their dates.  This document lists the Vietnam Counteroffensive Phase IV from 2 April 1968 to 30 June 1968; the Vietnam Counteroffensive Phase V from 1 July 1968 to 1 November 1968; the Vietnam Counteroffensive Phase VI from 2 November 1968 to 22 February 1969; and the TET 69 Counteroffensive from 23 February 1969 to 8 June 1969.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's REFRAD, prescribed policies and procedures regarding separation documents.  Paragraph 62 (Item 30) of this document states, in pertinent part, "[t]he "Remarks" section will be used to complete entries too long for their respective blocks" and provides, in pertinent part, to "enter inclusive dates of service in Vietnam during the current period of service."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the two entries (i.e., dated 17 February 1968 and 30 March 1968) in Item 38 of his DA Form 20 were erroneously crossed off and therefore, Item 30 of his DD Form 214 should be corrected to show his service in the Republic of Vietnam was from 1 January 1968 to
31 December 1968.  However, the applicant provides insufficient documentary evidence to support his claim.

2.  The evidence of record shows that the applicant was assigned for Fort Ord, California, on 20 November 1967, for training in MOS 36K and that he was awarded MOS 36K on 16 January 1968.  The evidence of record also shows that the applicant certified that he received a Cryptographic Access Authorization Briefing at Fort Ord, California, on 20 February 1968.  The evidence of record further shows that the applicant was issued orders on 9 February 1968 reassigning him to Fort Lewis, Washington, for reassignment to Vietnam; that he departed his unit in the United States on 13 April 1968; and that he arrived in Vietnam on 30 April 1968.

3.  There is no evidence of record that shows the applicant arrived in the Republic of Vietnam prior to 30 April 1968.  In fact, the evidence of record clearly places the applicant in the continental United States on 20 February 1968 and indicates he remained in the United States through 12 April 1968.  Moreover, the campaigns that the applicant is credited with participating in during the Vietnam conflict serve to affirm that he served in Vietnam during the period 30 April 1968 through 29 April 1969.  Therefore, in the absence of official documentary evidence to the contrary, the entry in Item 30 (Remarks) of the applicant's
DD Form 214 correctly documents his service in the Republic of Vietnam.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 September 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
7 September 1973.  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

___JTM__  ___TMR_  ___RMN_  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.



_____John T. Meixell_____
          CHAIRPERSON
INDEX

CASE ID
AR20060011966
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700908
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Early Separation from Overseas
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000.0000
2.

3.

4.

5.

6.