IN THE CASE OF:	  

		BOARD DATE:	        25 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080005790 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DD Form 214 dated 16 February 1985 be corrected to reflect his service from 2 December 1965 and all of his service in Vietnam. 

2.  The applicant states that his DD Form 214 does not reflect that he enlisted on 2 December 1965 nor does it reflect the 30 months he served in Vietnam.

3.  The applicant provides a copy of a Department of Veterans Affairs (VA) Rating Decision dated 16 October 2007. 

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 records, though quite incomplete, show that the applicant enlisted at Fort Jackson, South Carolina on 2 December 1965 for a period of 3 years.  He was honorably discharged in Vietnam on 1 February 1967 for the period of immediate reenlistment. 

3.  He reenlisted on 2 February 1967 in Pleiku, South Vietnam for a period 3 years.  He was honorably discharged on 4 December 1969 in Vietnam and on 5 December 1969, he reenlisted in the pay grade of E-5 for a period of 6 years.  

4.  He was honorably discharged on 15 September 1975 at Fort Hood, Texas for the purpose of immediate reenlistment.  He reenlisted on 16 September 1975 in the pay grade of E-6 for a period of 3 years.  On 13 July 1979, he was honorably discharged at Fort Jackson, South Carolina due to the expiration of his term of service (ETS).  He had served 13 years, 7 months and 12 days of total active service and had served 1 year and 26 days of foreign service in Korea during his last enlistment.  However, his DD Form 214 indicates in item 19. that he served in Indochina from 15 January 1967 to 15 August 1968 and from 10 July 1969 to 10 August 1970.

5.  The applicant again enlisted on 17 February 1981 and served until he was honorably discharged on 16 February 1982 due to ETS and Secretarial Authority. He had served 17 years, 7 months and 12 days of total active service and 11 months and 29 days of foreign service in Germany during his current enlistment.  All of the applicant’s service is properly reflected on that document.
   
6.  A review of the available records fails to reveal copies of his reports of separation (DD Form 214) for the periods covering 2 December 1965 to 15 September 1975.  His records (other than his DD Form 214 dated 13 July 1979) also fail to show the period(s) he served in Vietnam.  

7.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time provided, in pertinent part, that a DD Form 214 would be prepared for each period service, to include separations for immediate reenlistment.  It also provided that only awards issued and foreign service performed by the individual during the period covered by the DD Form 214 would be entered and that information would not be entered on subsequent DD Form 214s.  Effective 1 October 1979, that regulation was changed and provided that a DD Form 214 would not be issued for periods of immediate reenlistment.  A break in service of more than 24 hours is required for a DD Form 214 to be issued.  



DISCUSSION AND CONCLUSIONS:

1.  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.                     

2.  The applicant’s contention that all of his service and his service in Vietnam should be reflected on his DD Form 214 dated 16 February 1985 has been noted and found to lack merit.  The applicant did not serve in Vietnam during the period covered by the DD Form 214 and thus was not entitled to have that information entered on his DD Form 214.  However, all of his prior service is properly reflected on that form. 

3.  However, the information regarding his service in Indochina is reflected on his previously issued DD Form 214 dated 13 July 1979 and while his DD Form 214s issued prior to that are not contained in the available records, it should also be reflected on those documents.  

4.  Accordingly, it appears that his DD Forms 214 were properly prepared in accordance with the applicable regulations and that there is no basis to grant the applicant’s request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.  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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080005790





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ABCMR Record of Proceedings (cont)                                         AR20080005790



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