RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2007
      DOCKET NUMBER:  AR20070003261


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 record be corrected by
documenting his Missing In Action (MIA) status.

2.  The applicant states, in effect, that as a result of lost records, his
MIA status has never been documented.

3.  The applicant provides third-party statements from two sisters in
support of his application.

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 record shows that he enlisted in the Regular Army and
entered active duty on 11 September 1967.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Foreign Service) that he served in the Republic of Vietnam (RVN)
from 27 May 1968 through 27 May 1969.  Item 33 (Appointments and
Reductions) shows that he was promoted to specialist four on 1 December
1968, and that this is the highest rank he attained while serving on active
duty.  It also shows that he was reduced to private first class (PFC) on 16
December 1968 and to private/E-2 (PV2) on 1 December 1969.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows
that during his RVN tour, he was assigned to Company A and Company D,
1st Battalion, 502nd Infantry Regiment, performing duties in MOS 11B as a
rifleman and automatic rifleman.

5.  The applicant's DA Form 20 contains no entries indicating that he was
ever reported MIA or placed in an MIA status, and his Military Personnel
Records Jacket (MPRJ) is void of any orders or other documents indicating
that he was ever reported MIA or placed in an MIA status.

6.  On 18 September 1970, the applicant was honorably separated after
completing 2 years, 11 months and 29 days of creditable active military
service and accruing 9 days of time lost due to being absent without leave
(AWOL) and in confinement.  The DD Form 214 he was issued, as amended by a
separation document correction (DD Form 215) issued on 10 May 2000, shows
he earned the following awards during his active duty tenure:  National
Defense Service Medal; Bronze Star Medal; Army Commendation Medal; Purple
Heart; RVN Campaign Medal; Vietnam Service Medal with 4 bronze service
stars; Valorous Unit Award; RVN Gallantry Cross with Palm Unit Citation;
RVN Civil Actions Honor Medal First Class Unit Citation; Combat Infantryman
Badge (CIB); Parachutist Badge; and Expert Marksmanship Qualification Badge
with Rifle Bar.

7.  The applicant provides two third-party statements from his sisters, who
attest to the fact the family was notified the applicant was MIA in the
RVN.

8.  During the processing of this case, a member of the Board staff
reviewed the Defense Prisoner of War/Missing In Action (POW/MIA) Office
alphabetic listing of all United States personnel who are or were uncounted
for from the Vietnam War.  This list published by the Department of Defense
(DOD) does not include the applicant's name.

9.  Army Regulation 600-8-1 (Army Casualty Program) prescribes the policies
and mandated operating tasks, responsibilities, and procedures for casualty
operations functions of the military personnel system.  The regulatory
requires casualty reports to be submitted on individuals who are reported
missing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to
document his MIA status was carefully considered.  However, there is
insufficient evidence to support granting the requested relief.

2.  The sincerity of the applicant's contention and of the information
contained in the third-party statements from his sisters in not in
question.  However, his DA Form 20 contains no entries that indicate he was
ever MIA.  His MPRJ is void of any casualty reports, or other documents
showing he was ever in an unknown duty status, or that he was ever reported
MIA.  Further, his name does not appear on the DOD Vietnam War POW/MIA
listing.  As a result, absent any independent evidence that confirms he was
ever reported as MIA, there is an insufficient evidentiary basis to grant
the requested relief.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  The Board wants the applicant and all others concerned to know that
this action in no way diminishes the sacrifices made by the applicant in
service to our Nation.  The applicant and all Americans should be
justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI __  __TMR__  __GJP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Bernad P. Ingold____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070003261                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/09/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Trns to USAR                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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