IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090002160 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he did not sign a statement on 8 April 1972 waiving his Department of Veterans Affairs (VA) benefits.  He also requests reinstatement of VA benefits.  

2.  The applicant states that after serving 8 months in the Republic of Vietnam, several members were told if they signed a form waiving their rights to VA benefits, they would not have to serve any more active duty time.  He adds that he was young at the time and did not realize what he was giving up and that he believes a young Soldier would have signed almost anything to be free of the threat of impending death.   

3.  The applicant did not provide any additional documentary evidence 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 applicant's records show he was inducted into the Army of the United States on 4 March 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Policeman). 

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 15 August 1971 to 8 April 1972.  He was assigned to the 630th Military Police Company. 

4.  On 8 April 1972, the applicant requested early release from active duty.  He authenticated a sworn statement acknowledging the following:

“I, the undersigned, hereby request and consent to be released from active duty on 8 April 1972 in lieu of remaining on active duty until a later date in order to complete a total of 18 months of active duty.  I understand that by being separated on the above date, I will receive credit for 21 months of educational benefits under the Veteran’s Readjustment Benefit’s Act of 1966 whereas, if I complete 18 months of active duty, I will be eligible to receive credit of one and a half months for each month or fraction thereof served on active duty.  I further understand that if I accept release from active duty at this time, I will not be permitted to reenlist within 90 days following my separation.  This statement is true and complete to the best of my knowledge.”  

5.  The applicant was honorably released from active duty, on 8 April 1972, under the provisions of Army Regulation 635-200 and Department of the Army message, date and time group 102035Z December 1971, for good and sufficient reason when determined by secretarial authority.  He was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group in the rank/pay grade, specialist four/E-4.  On the date he was released from active duty, he had completed 1 year, 1 month, and 6 days of active military service with no days lost.  Item 30 (Remarks) of his DD Form 214 shows the entry “EM (Enlisted Member) signed a statement waiving VA benefits on 8 April 1972.”

6.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Paragraph 2-3 of the version in effect at the time states, in effect, that the entry of cause for separation in items 11c (Type of Separation and Discharge) and 30 (Remarks) of the DD Form 214 will be specified in the appropriate paragraphs of this regulation or as directed by Headquarters, Department of the Army (HQDA).  Additionally, item 30 is used for entries authorized by HQDA for which a separate entry is not available on the DD Form 214 and to complete entries too long for their respective blocks.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant voluntarily requested and consented in writing to an early release from active duty on 8 April 1972 in lieu of remaining on active duty until a later date to complete a total of 18 months of active duty.  

2.  When the applicant signed his statement, he indicated that he understood that by being separated on the requested date he would receive credit for 21 months of educational benefits under the Veteran’s Readjustment Benefit’s Act of 1966 and that he would be eligible to receive credit of one and a half months for each month or fraction thereof served on active duty.  He did not waive his VA benefits.  It is unclear why the statement "EM signed a statement waiving VA benefits on 8 April 1972" appears on his DD Form 214.  Therefore, this statement should be removed

3.  The applicant is reminded that the ABCMR does not change records solely for the purpose of making the individual eligible for veterans or other benefits.  Entitlements to VA benefits are not within the purview of this Board and the applicant is advised to contact his local/regional VA representative to inquire about VA benefits.  

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 deleting the entry "EM signed a statement waiving VA benefits on 8 April 1972" from his DD Form 214, dated 8 April 1972.

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 reinstatement of the applicant's VA benefits.





      _______ _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)                                         AR20090002160



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ABCMR Record of Proceedings (cont)                                         AR20090002160



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