IN THE CASE OF:	  

		BOARD DATE:	  	  23 December 2008

		DOCKET NUMBER:  AR20080012239 


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 discharge document to show he completed 3 years and 1 month foreign service.

2.  The applicant states, in effect, he served overseas in Germany from May 1957 to September 1959 and in Vietnam from May 1971 to March 1972.  The applicant indicates he needs his final discharge document corrected because he is seeking disability benefits from the Department of Veterans’ Affairs (VA).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of
8 October 1959; DD Form 214, with an effective date of 12 April 1973; and
DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 May 1988.

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 show he enlisted in the U.S. Army Reserve (USAR) on 14 April 1955.  He then enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 17 October 1956.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 111.77 (Light Weapons Infantryman).

3.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty for a period of 3 years on 17 October 1956, was honorably released from active duty on 8 October 1959 based on early separation of overseas returnee, and transferred to the USAR XXI, U.S. Army Corps (Reserve) to complete his remaining military service obligation.  At the time he had completed 2 years, 11 months, and 22 days net active service this period; 1 year, 6 months, and 2 days other service; and 4 years, 5 months, and 24 days total active service.  Item 12 (Last Duty Assignment and Major Command) shows he was assigned to Headquarters and Headquarters Company, 1st Brigade,
34th Infantry (Germany).  Item 22 (Statement of Service), block c (Foreign and/or Sea Service) shows he completed 2 years, 3 months, and 28 days of foreign service.

4.  The applicant's military personnel records contain an NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of California and as a Reserve of the Army) that shows he enlisted on 26 October 1968 for a period of 1 year and he was honorably discharged on 11 February 1969.  This document also shows, in pertinent part, that the applicant served in the USAR from 9 October 1959 to 1 March 1962; was assigned to the USAR Control Group from 2 March 1962 to 18 June 1967; and "transferred to the USAR" on 19 June 1967 where he remained assigned through 31 March 1968. 

5.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows the applicant had overseas service prior to 1 January 1960 totaling 27 months and that he served in the Far East Pacific in Vietnam from 12 May 1971 through 6 March 1972.

6.  The applicant's military personnel records contain a DD Form 214 that shows he enlisted in the RA and entered active duty on 1 May 1971 and was honorably discharged on 12 April 1973 for the purpose of his immediate reenlistment.  At the time he had completed 1 year, 11 months, and 12 days net active service this period; 15 years, 6 months, and 2 days other service; 17 years, 5 months, and 
4 days total service; and 5 years, 0 months, and 4 days total active service.  Item 22, block c, shows he served overseas in the U.S. Army Pacific and completed
0 years, 10 months, and 25 days of foreign service.  Item 30 (Remarks), in pertinent part, shows he served in Vietnam from 12 May 1971 to 6 March 1972.

7.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty this period on 13 April 1973, was honorably separated on 31 May 1988 based on retirement for length of service, and transferred to the USAR Control Group (Retired).  At the time he had completed 15 years, 1 month, and 18 days of net active service this period; 4 years, 11 months, and 11 days total prior active service; 13 years, 0 months, and 18 days total prior inactive service; and 0 years, 0 months, and 0 days foreign service.  Item 18 (Remarks), in pertinent part, shows the applicant had immediate reenlistments during this period of active duty from 13 April 1973 through 24 October 1979, from
25 October 1979 through 1 October 1985, and from 2 October 1985 through
31 May 1988.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty on 8 October 1959 and 12 April 1973, 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.

9.  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 period covered by the DD Form 214.  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 overseas service at the time of the applicant’s separation on 8 October 1959.

10.  Effective 2 January 1970, Change 11 to Army Regulation 635-5 was implemented.  In pertinent part, this document added subparagraph 18 to paragraph 62 (Item 30), b (Enlisted personnel), and instructed "[e]nter inclusive dates of service in Vietnam during current period of service."

11.  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).

12.  Table 2-1 (DD Form 214 Preparation Instructions) of this Separation Documents regulation contains item-by-item instructions for completing 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 (Officer Record Brief) for officers or Item 5 of the DA Form 2-1 (Personnel Qualification Record) for enlisted Soldiers to compute this entry.  If necessary, verify the foreign service in the MPRJ)/OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214, with an effective date of 31 May 1988, should be corrected to show he completed 3 years and 1 month of foreign service.

2.  The evidence of record shows that the applicant entered active duty in the RA on 17 October 1956, was honorably released from active duty on 8 October 1959, and a DD Form 214 was issued to document this period of active duty service.  The evidence of record also shows that he completed 2 years,
3 months, and 28 days of foreign service during this period and that this foreign service is properly recorded in Item 22, block c, of the applicant’s DD Form 214.

3.  The evidence of record shows that the applicant entered active duty in the RA on 1 May 1971, was honorably discharged on 12 April 1973, and a DD Form 214 was issued to document this period of active duty service.  The evidence of record also shows that he served in Vietnam from 12 May 1971 through 6 March 1972 and that this service is properly and correctly recorded in Item 30 of his
DD Form 214.  The evidence of record further shows the applicant was credited with completing 0 years, 10 months, and 25 days foreign service during this period (see Item 22, block c of the DD Form 214).  (As a matter of record, it is noted that the applicant served in Vietnam from 12 May 1971 through 6 March 1972 and that this period of foreign service actually equates to 9 months and
25 days.  However, as the applicant does not seek correction of this particular record, no action is being taken to correct this DD Form 214.)
4.  The evidence of record shows the applicant reenlisted to remain on active duty in the RA on 13 April 1973, was honorably separated from active duty on
31 May 1988 based on retirement for length of service, and a DD Form 214 was issued to document this period of active duty service.  The evidence of record also shows that the total amount of foreign service completed during the period covered by the DD Form 214 will be entered in Item 12, block c.  There is no evidence that the applicant served overseas during this period of active duty.  Thus, records show that the applicant’s DD Form 214 contains the proper and correct entry in Item 12, block c (i.e., “00 years, 00 months, and 00 days”). Therefore, the applicant is not entitled to correction of his DD Form 214 with an effective date of 31 May 1988.

5.  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.

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)                                         AR20080012239



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ABCMR Record of Proceedings (cont)                                         AR20080012239



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