IN THE CASE OF:	  

		BOARD DATE: 	        28 May 2009

		DOCKET NUMBER:  AR20090000530 


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 (Report of Transfer or Discharge) be corrected to show all awards and decorations to which he may be entitled, his Vietnam service, and that he be paid for his accrued leave.

2.  The applicant states, in effect, that his records were left in Vietnam when he was evacuated to Japan and then to the United States; that his records never caught up with him; and that when he was discharged from Fort Riley, Kansas they did not have his records to verify his Vietnam service or accrued leave for lump sum payment.

3.  The applicant provides a copy of his DD Form 214, a DD Form 215 (Correction to DD Form 214), and a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim) 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.  A DD Form 215, dated 6 September 1974, amended item 22c on the applicant's DD Form 214 to show he completed 4 months and 3 days of foreign service.  

3.  The applicant enlisted in the Regular Army (RA) on 24 August 1966 for a period of 3 years.  He arrived in Vietnam on 3 March 1969.  He served as a cook assigned to Battery D, 1st Battalion, 44th Artillery in Vietnam from 9 March 1969 through 5 July 1969.  On 21 July 1969, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214 shows the entry "UNKNOWN."  Item 30 (Remarks) on his DD Form 214 states, in pertinent part, "Lump sum payment for accrued leave not made; final settlement to be made by U.S. Army Finance Center Indianapolis, Indiana" and "Separated from Service on Temporary records and Soldier's Affidavit."

5.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 
3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Appendix B, Table B-1 of this regulation his regulation also authorizes, in pertinent part, award of a bronze service star, based on qualifying service, for each campaign listed in and states that authorized bronze service stars will be worn on the appropriate service medal.  Records show the applicant participated in two campaigns during his assignment In Vietnam; the Tet 69 Counteroffensive, 1969 which extended from 23 February 1969 – 8 June 1969 and the Vietnam Summer – Fall 1969 which extended from 9 June 1969 – 31 October 1969.

7.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

8.  Army Regulation 600-8-22 further provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual separated from the Army and established standardized procedures for the preparation and distribution of these documents.  The purpose of a separation document is to provide the individual with documentary evidence of his/her military service.  It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  It also established standardized policy for the preparation of the DD Form 214.  It stated, in effect, that for item 22c (Statement of Service – Foreign and/or Sea Service), enter total active duty outside continental limits of United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR)."

10.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 
31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  Based on his service in Vietnam and participation in two campaigns, the applicant is eligible for the Vietnam Service Medal with two bronze service stars.  Therefore, his records should be corrected to show this award.

2.  The applicant's contention that he was not paid for his 1969 accrued leave and the entry on his DD Form 214 which states that "Lump sum payment for accrued leave not made" were noted.  However, his DD Form 214 also states that final settlement for his accrued leave would be made by the U.S. Army Finance Center in Indianapolis, Indiana.  There is no evidence of record which shows the applicant was not paid for this accrued leave.  Therefore, there is an insufficient basis for granting the applicant's request at this time.   

3.  The applicant served a period of qualifying service for award of the National Defense Service Medal.  Therefore, his records should be corrected to show this award. 

4.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units that served in Vietnam.  The applicant served in Vietnam during a qualifying period and is eligible for this award.  Therefore, it would be appropriate to add this foreign unit award to his DD Form 214.

5.  Records show the applicant served overseas in the Republic of Vietnam (USARV) during his tenure of service.  However, the named overseas theater in which service was performed is not annotated in item 22c as required by the applicable regulation in effect at the time.  Therefore, item 22c should be corrected to show the show "USARV."

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 24 of the applicant's DD Form 214 the Vietnam Service Medal with two bronze service stars, the National Defense Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

	b.  adding to item 22c of the applicant DD Form 214 the entry "USARV."


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of any accrued leave.



      _______ _  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)                                         AR20090000530



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ABCMR Record of Proceedings (cont)                                         AR20090000530



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