RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060014192 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Jerome Pionk

Member

Mr. Eddie Smoot

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 correction of item 12f (Foreign Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 February 1980. 

2.  The applicant states that he had three years of overseas duty in Germany and three tours in Vietnam.  He contends that he should have over 72 months of foreign service and his final retirement DD Form 214 only shows 11 months and 
21 days.

3.  The applicant provides three DD Forms 214 and numerous copies of his service personnel records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 29 February 1980.  The application submitted in this case is dated 27 September 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 was inducted in the Army of the United States on 15 July 1959. On 4 December 1959, he was honorably discharged for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 5 December 1959 for a period of 3 years.  He arrived in Germany on 17 January 1961.  On 4 December 1962, he was honorably discharged.  

4.  The applicant’s DD Form 214 (Report of Transfer or Discharge) for the period ending 4 December 1962 shows that he served 1 year, 10 months, and 18 days of foreign service in Germany. 

5.  While serving in Germany, the applicant reenlisted on 5 December 1962.  He departed Germany on 9 January 1964.  He arrived in Vietnam on 13 October 1965.  On 4 December 1965, the applicant was honorably discharged. 

6.  The applicant’s DD Form 214 for the period ending 4 December 1965 shows that he served 1 year, 2 months, and 25 days of foreign service in Germany and Vietnam.

7.  While serving in Vietnam, the applicant reenlisted on 5 December 1965 for a period of 6 years.  He departed Vietnam on 15 September 1966.  He served a second tour in Vietnam from 20 November 1967 to 16 November 1968 and served a third tour in Vietnam from 28 July 1970 to 27 July 1971.  On 
2 December 1971, the applicant was honorably discharged.  

8.  The applicant’s DD Form 214 for the period ending 2 December 1971 shows he served 2 years, 9 months, and 28 days of foreign service in Vietnam.  Item 
30 (Remarks) on this DD Form 214 shows his inclusive dates of service in Vietnam.

9.  The applicant reenlisted on 3 December 1971 and was honorably discharged on 3 November 1977.

10.  The applicant’s DD Form 214 for the period ending 3 November 1977 shows the applicant’s inclusive dates of service in Vietnam in item 19 (Indochina or Korea Service Since August 5, 1964).  

11.  The applicant reenlisted on 4 November 1977.  He served in Saudi Arabia from 13 February 1978 to 3 February 1979, a total of 11 months and 21 days.  On 29 February 1980, he retired in the rank of sergeant first class after completing over 20 years of active service.   

12.  Item 12f on the applicant’s DD Form 214 for the period ending 29 February 1980 shows he served 11 months and 21 days of foreign service.  

13.  Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time stated, in pertinent part, that item 12f of the DD Form 214 would show the total amount of foreign service completed during the period covered in block 12c (Net Active Service This Period).

DISCUSSION AND CONCLUSIONS:

1.  Since the governing regulation states that item 12f would show the total amount of foreign service completed during the period covered by the DD Form 214, and the applicant’s service in Saudi Arabia is properly shown in item 12f on his retirement DD Form 214, there is no basis for granting the applicant’s request to show his service in Germany and Vietnam on his retirement DD Form 214.  
2.  Records show the applicant should have discovered the alleged error now under consideration on 29 February 1980; therefore, the time for the applicant to file a request for correction of any error expired on 28 February 1983.  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

LS_____  __JP____  __ES___  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.


__Linda Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014192
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.