IN THE CASE OF:	  

		BOARD DATE:	  	  6 January 2008

		DOCKET NUMBER:  AR20080008082 


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, in effect, correction of his records to show he entered military service on 18 November 1966, served three tours of duty in Southeast Asia (i.e., 1967-1968, 1969-1970, and 1971-1972), and retired from active duty on 30 November 1986.

2.  The applicant states, in effect, he needs his records corrected because he is seeking disability benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentary evidence.

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 military personnel records contain a DD Form 47 (Record of Induction) that shows, in pertinent part, he was inducted into the Army of the United States (AUS) on 17 November 1966.

3.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was inducted into the AUS on 17 November 1966, was honorably released from active duty on 4 October 1968 based on the provision for early separation of overseas returnees, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  At the time he had completed 1 year, 10 months, and 18 days of net active service this period.  Item 22 (Statement of Service), block c (Foreign and/or Sea Service), contains the entry "USARPAC" (U.S. Army Pacific) and shows he completed 1 year, 0 months, and 0 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), and two Overseas Service Bars.  Item 30 (Remarks) is absent any indication that the applicant served in the Republic of Vietnam.

4.  The applicant's military personnel records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows, in pertinent part, he reenlisted in the Regular Army (RA) and entered active duty for a period of 6 years on 14 October 1968.  Item 40 (Total Active Federal Service) shows he had completed 1 year, 10 months, and 18 days of total active Federal service.  Item 43 (Total Inactive Federal Service) shows he had completed 0 years, 0 months, and 0 days of total inactive Federal service.  Item 49 (Prior Service) shows the applicant served honorably in the U.S. Army from 17 November 1966 through 4 October 1968.

5.  The applicant's military personnel records contain a DD Form 4 that shows, in pertinent part, he reenlisted in the RA for a period of 5 years on 19 May 1971.  Item 40 shows he had completed 4 years, 5 months, and 23 days of total active Federal service.  Item 43 shows he had completed 0 years, 0 months, and 9 days of total inactive Federal service.  Item 49 shows the applicant served honorably in the U.S. Army from 14 October 1968 through 18 May 1971.

6.  The applicant's military personnel records contain a DD Form 4 that shows, in pertinent part, he reenlisted in the RA for a period of 3 years on 9 April 1976.  Item 40 shows he had completed 9 years, 4 months, and 13 days of total active Federal service.  Item 43 shows he had completed 0 years, 0 months, and 9 days of total inactive Federal service.  Item 49 shows the applicant served honorably in the U.S. Army from 19 May 1971 through 8 April 1976.

7.  The applicant's military personnel records contain a DA Form 1695 (Oath of Extension of Enlistment), dated 19 July 1976, that shows he extended his 3-year enlistment of 9 April 1976 to a period of 3 years and 3 months.

8.  The applicant's military personnel records contain a DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) that shows, in pertinent part, he reenlisted in the RA for a period of 3 years on 15 February 1979.  Item 9 (Previous Military Service), block a (Total Active Military Service), shows he had completed 12 years, 2 months, and 28 days of total active military service.  Item 49, block b (Total Inactive Military Service), shows he had completed 0 years, 0 months, and 0 days of total inactive military service.

9.  The applicant's military personnel records contain a DD Form 4 that shows, in pertinent part, he reenlisted in the RA for a period of 5 years on 15 June 1981.  Item 9 (Previous Military Service Upon Enlistment/Reenlistment), block a, shows he had completed 14 years, 6 months, and 27 days of total active military service.  Item 9, block b, shows he had completed 0 years, 0 months, and 0 days of total inactive military service.

10.  The applicant's military personnel records contain a DA Form 1695, dated 24 April 1986, that shows the applicant extended his 6-year enlistment of 15 June 1980 to a period of 6 years and 6 months.

11.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows he served overseas in the Far East Pacific (FEPA) in the Republic of Vietnam (RVN) from 9 October 1966 through 8 October 1967, U.S. Army Europe (EURA) in Germany from 28 January 1969 through 10 June 1969, FEPA RVN from 17 June 1969 through 18 June 1970, FEPA RVN from 30 September 1971 through 17  May 1972, and EURA Germany from 25 June 1976 through 3 January 1980.

12.  The applicant's military personnel records contain a copy of Headquarters, Walter Reed Army Medical Center, Washington, DC, Orders 89-5, dated 8 May 1986, that show the applicant was ordered to be released from active duty on 30 November 1986 to be placed on the Retired List effective 1 December 1986.

13.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered a period of active duty on 15 February 1979, was honorably separated on 30 November 1986 based on retirement for length of service, and transferred to the USAR Control Group (Retired).  At the time he had completed 7 years, 9 months, and 16 days of net active service this period; 12 years, 2 months, and 19 days of total prior active service; 0 years, 0 months, and 9 days of total prior inactive service; and 0 years, 10 months, and 18 days of foreign service.  Item 18 (Remarks), in pertinent part, shows an immediate reenlistment during this period of active duty from 15 February 1979 through 14 June 1981.

14.  The applicant's military personnel records are absent a DD Form 214 for the period of service from 14 October 1968 through 18 May 1971.

15.  The applicant's military personnel records are absent a DD Form 214 for the period of service from 19 May 1971 through 8 April 1976.

16.  The applicant's military personnel records are absent a DD Form 214 for the period of service from 9 April 1976 through 14 February 1979.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's initial separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

18.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 51 (Item 22c), subparagraph b (Enlisted personnel), states, in pertinent part, "[e]nter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater service was performed."  Paragraph 62 (Item 30 - Remarks) states that the "Remarks" section will be used to complete entries too long for their respective blocks and also provided specific guidance on required entries; however, there was no requirement for an entry regarding service in Vietnam.

19.  Effective 2 January 1970, change 11 to Army Regulation 635-5 was implemented.  In pertinent part, this document added subparagraph 18 to paragraph 62b (Enlisted Personnel), and instructed "[e]nter inclusive dates of service in Vietnam during current period of service."

20.  Effective 1 October 1979, Army Regulation 635-5 ended the need to prepare the DD Form 214 for enlisted members discharged for immediate reenlistment.

21.  Army Regulation 635-5, in effect at the time the applicant retired from active duty, in pertinent part, stated that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).

22.  Table 2-1 (DD Form 214 Preparation Instructions) of Army Regulation 635-5 contains item-by-item instructions for preparing the DD Form 214.  The instructions for completing item 12 (Statement of Service), block f (Foreign Service), state to enter the total amount of foreign service completed during the period covered in item 12, block c (i.e., the period covered by the DD Form 214).  Obtain the foreign service listed in Section 1 of the DA Form 4037 (ORB) for officers or item 5 of the DA Form 2-1 (PQR) for enlisted Soldiers to compute this entry.  If necessary, verify the foreign service in the MPRJ)/OMPF.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he entered military service on 18 November 1966, served three tours of duty in Vietnam, and retired from active duty on 30 November 1986.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he entered military service on 18 November 1966.

3.  The evidence of record shows that the applicant was inducted into the AUS on 17 November 1966, was honorably released from active duty on 4 October 1968, and a DD Form 214 was issued to document this period of 


active duty service.  The evidence of record also shows that he served 1 year, 0 months, and 0 days in USARPAC and that this period of foreign service is properly and accurately recorded in item 22, block c, of the applicant’s DD Form 214.  Therefore, the applicant is not entitled to correction of his records in this instance.  However, it is noted that the DD Form 214 does not specifically show that the applicant served in Vietnam or the period of his overseas service in Vietnam (9 October 1966 through 8 October 1967).

4.  The evidence of record shows that subsequent to the applicant's separation from active duty on 4 October 1968, an Army regulatory change was implemented that authorized entry of the inclusive dates of service in Vietnam in item 30 of the DD Form 214.  Therefore, as a matter of equity, it would be appropriate to correct the applicant's DD Form 214, with an effective date of 4 October 1968, to show the inclusive dates of his service in Vietnam (9 October 1967 through 8 October 1968).

5.  The evidence of record shows that Army regulations prescribed that a DD Form 214 will be issued for each period of active duty service to provide the individual with documentary evidence of his or her military service at the time of separation.  The evidence of record also shows that this Army regulatory guidance was in effect during the period of service in question (14 October 1968 through 14 February 1979).  The applicant's military personnel records are absent DD Forms 214 for the periods of service from 14 October 1968 through 18 May 1971; 19 May 1971 through 8 April 1976; and 9 April 1976 through 14 February 1979.  In addition, records show the applicant completed two tours of duty in Vietnam during this period of service (17 June 1969 through 18 June 1970 and 30 September 1971 through 17 May 1972).

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In the absence of evidence to the contrary, the presumption is the applicant was issued the appropriate DD Forms 214 for the periods of active duty in question.  Thus, it is concluded that a DD Form 214 was issued for each of the applicant’s periods of active duty service (14 October 1968 through 18 May 1971, 19 May 1971 through 8 April 1976, and 9 April 1976 through 14 February 1979).  Therefore, the applicant is not entitled to correction of his records in these instances.  

7.  However, based on the available evidence and as a matter of equity, it would be appropriate to issue an appropriate document certifying the applicant’s 


continuous period of active duty service (14 October 1968 through 14 February 1979) and his two additional tours of foreign service in Vietnam (17 June 1969 through 18 June 1970 and 30 September 1971 through 17 May 1972).

8.  The evidence of record shows that the applicant reenlisted on 15 February 1979, was honorably separated from active duty on 30 November 1986 based on retirement for length of service, transferred to the USAR Control Group (Retired) on 1 December 1986, and that a DD Form 214 was issued to document this period of active duty service.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding to item 30 of his DD Form 214 for the period ending 4 October 1968, the entry, "SERVICE IN VIETNAM:  9 OCTOBER 1966 – 8 OCTOBER 1967"; and

	b.  issuing an appropriate certificate to document his honorable active duty service from 14 October 1968 through 14 February 1979, and service in Vietnam from 17 June 1969 through 18 June 1970 and from 30 September 1971 through 17 May 1972.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, with respect to his DD Form 214 with an effective date of 4 October 1968, the Board recommends denial of so much of the application that pertains to the date of entry on active 


duty (18 November 1966).  In addition, with respect to his DD Form 214 with an effective date of 30 November 1986, the Board recommends denial of so much of the application that pertains to date of entry on active duty.



      ___________X______________
                 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)                                         AR20080008082



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ABCMR Record of Proceedings (cont)                                         AR20080008082



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