IN THE CASE OF:	  

		BOARD DATE:	 18 February 2009 

		DOCKET NUMBER:  AR20080012179 


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, that his record be corrected to show his service in Vietnam.

2.  The applicant states, in effect, his DD Form 214 (Report of Separation from Active Duty) does not reflect his Vietnam service.  He adds that he sent for a copy of his DD Form 214 for the Agent Orange Registry and it does not show his service in Vietnam.

3.  The applicant provides no additional documents in support of his request.

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 evidence of record shows the applicant enlisted in the Regular Army for 2 years on 28 August 1972.  He completed his basic combat training at Fort Jackson, South Carolina, and his advanced individual training at Fort Polk, Louisiana.  Upon completion of his training, he was awarded the primary military occupational specialty (MOS) 11C, Infantry Indirect Fire Crewman.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Germany for the period from 12 January 1973 through 30 April 1974.  This item has no entry crediting the applicant with service in Vietnam.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he completed his advanced individual training on 19 December 1972 and was "casual/enroute to USAREUR [U.S. Army Europe] - Germany" on 20 December 
1972.

5.  The applicant was relieved from assignment to the U.S. Army Overseas Replacement Station, U.S. Army Personnel Center, Fort Dix, New Jersey, and was assigned to the 21st Adjutant General Replacement Battalion, Germany, with further assignment to the 3rd Adjutant General Administration Replacement Detachment, Germany, with a reporting date of 15 January 1973, by Headquarters, U.S. Army Personnel Center, Fort Dix, Special Orders Number 011, on 11 January 1973.

6.  On his arrival at the 3rd Adjutant General Administration Replacement Detachment, the applicant was assigned to Company B, 1st Battalion, 7th Infantry Regiment, for duty in his primary MOS with a reporting date of 18 January 1973 by Special Orders 13, dated 13 January 1973.

7.  The applicant was advanced to private first class on 14 September 1973 while he was assigned to Company C, 1st Battalion, 7th Infantry Regiment, by Headquarters, U.S. Army Europe and Seventh Army, Special Orders 270, dated 27 September 1973.

8.  The applicant was reassigned from his unit, Company C, 1st Battalion, 7th Infantry Regiment, by Headquarters, U.S. Army Europe and Seventh Army, Special Orders 110, dated 20 April 1974, to the U.S. Army Transfer Station, Fort Dix, New Jersey, for the purpose of being discharged.  The applicant's reporting date to the transfer station was 1 May 1974.

9.  The applicant's DA Form 137 (Installation Clearance Record) is on file in the applicant's personnel records.  This record shows he completed clearance procedures and was allowed to clear from his unit in Germany, Company C, 1st Battalion, 7th Infantry Regiment, on 30 April 1974.

10.  The applicant was discharged from active duty under honorable conditions on 1 May 1974 in the rank and pay grade of private first class, E-3, under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
13-5a(3) for unfitness – drug abuse.  On the date of his discharge the applicant had completed 1 year, 8 months, and 4 days active military service with no time lost.

11.  The applicant's discharge was upgraded to a fully honorable discharge as a result of a court order from the U.S. District Court for the District of Columbia in Giles vs. Secretary of the Army.  On approval of his discharge, the applicant was re-issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).

12.  Item 18f (Foreign and/or Sea Service This Period) of the applicant's originally issued DD Form 214 shows he completed 1 year, 3 months, and 19 days foreign service.  Item 27 (Remarks) shows this service was performed with USAREUR.

13.  Item 12f (Foreign Service) of the applicant's re-issued DD Form 214 shows he completed 1 year, 3 months, and 19 days of foreign service.

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 evidence shows the applicant was assigned to USAREUR and more specifically, to Company B and later to Company C, 1st Battalion, 7th Infantry Regiment, 3rd Infantry Division, located in Germany after he completed his basic combat and advanced individual training.  There is no evidence, and the applicant provided none, to show he served in Vietnam on either a temporary or on a permanent change of station basis.

3.  Based on the evidence of record, the applicant is not entitled to a correction of his record to show he served in Vietnam.  His foreign service and the location at which he served are correctly recorded on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ___x____  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.



      ____________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)                                         AR20080012179



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ABCMR Record of Proceedings (cont)                                         AR20080012179



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