RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 May 2007
DOCKET NUMBER: AR20060015210
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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to show his service in Vietnam.
2. The applicant states that he was a 1st Cavalry gunner on a helicopter after the fall of Saigon and that he removed personnel from the area to safety.
3. The applicant provides a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 31 January 1978. The application submitted in this case is dated 23 October 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 applicants failure to timely file.
3. The applicant enlisted on 24 September 1975 for a period of 3 years. He served as a sound ranging crewman in Germany and was honorably discharged on 31 January 1978.
4. Item 18f (Foreign and/or Sea Service This Period) on the applicants DD Form 214 shows that he served 7 months and 17 days of foreign service.
5. The applicants DA 2-1 (Personnel Qualification Record) shows that he served in Germany from 14 June 1977 to 30 January 1978, for a total of 7 months and 17 days.
6. There is no evidence of record which shows the applicant served in Vietnam.
7. Army Regulation 635-5 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. In pertinent part, it directs that foreign service performed during the period covered by the DD Form 214 will be entered in items 22c or
(depending on the version used at the time) 18f. The regulation also states that the amount of foreign service will be taken from the Soldiers Enlisted Qualification Record or, if necessary, verified from the Soldiers Military Personnel Records Jacket.
DISCUSSION AND CONCLUSIONS:
1. Since there is no evidence of record which shows the applicant served in Vietnam, there is no basis for granting the applicants request.
2. Records show the applicant should have discovered the alleged error now under consideration on 31 January 1978; therefore, the time for the applicant to file a request for correction of any error expired on 30 January 1981. 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
AR20060015210
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.
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