IN THE CASE OF:	  

		BOARD DATE:	       26 AUGUST 2009

		DOCKET NUMBER:  AR20090004503 


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 to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 November 1971, Item 22c (Foreign and/or Sea Service), to reflect the entry "Okinawa" and Item 30 (Remarks) to reflect service in Vietnam for 90 days.  

2.  The applicant states, in effect, that when his DD Form 214 was corrected in 1985, the entry "Vietnam" was erroneously entered in Item 22c and the entry "Vietnam Service None" continued to be shown in Item 30.  He also states, in effect, that the entry "Okinawa" should be, as it previously was, shown in Item 22c.  His Leave and Earnings Statement (LES) shows he received hostile fire pay (HFP) for 90 days in 1971 and Vietnam was the only place that you went on temporary duty (TDY) that drew HFP.  The error was found by the Department of Veterans Affairs.

3.  In support of his application, the applicant provides copies of his 1971 DD Form 214, his LES for the pay period 1 to 30 April 1971, Army Regulation 37-104-3 (Update), and his letter from the Army Board for Correction of Military Records (ABCMR).  

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 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 records show he enlisted in the Regular Army in pay grade E-1 on 12 January 1961, for 3 years.  He was honorably discharged from active duty in pay grade E-3 on 22 November 1962, for the purpose of immediate reenlistment.  He reenlisted on 23 November 1962 for 3 years.  He was again honorably discharged from active duty in pay grade E-4 on 7 September 1965, for the purpose of immediate reenlistment.  He reenlisted on 8 September 1965 for 6 years.  

3.  The applicant served in Okinawa from 1 December 1970 to 23 September 1971, a period of 2 years, 1 month, and 25 days.  His records do not show he served in Vietnam.

4.  The applicant was honorably discharged from active duty in pay grade E-6 on 20 January 1971, for the purpose of immediate reenlistment.  He reenlisted on 21 January 1971 for 5 years.  He was honorably discharged from active duty in pay grade E-6 on 12 November 1971, with a hardship discharge.  Item 22c of the record copy of his DD Form 214 shows he was credited with 8 months and 3 days of total foreign service and contained the entry "Okinawa" annotated to identify the country in which he served this period.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show any awards.  Item 30 contains the entry "Vietnam Service None."

5.  The applicant submits a copy of his LES for the pay period 1 to 30 April 1971. This LES does not show he served in Vietnam, but contains the entry, "HFP Jan Mar 71."

6.  The applicant also submits a copy of a DD Form 214, dated 12 November 1971, that shows in Item 22c he was credited with 8 months and 3 days of total foreign service and contained the entry "Vietnam" annotated to identify the country in which he served this period.  Item 24 lists the Purple Heart award.  Item 30 contains the entry "Vietnam Service None."  It appears a copy of this DD Form 214 was filed in his records as an attachment to the letter from the ABCMR dated 8 December 2008.

7.  The applicant further submits a copy of his letter from the ABCMR, dated 8 December 2008.  The letter advised him that his service in Vietnam could not be determined as his record was void of any assignment, attachment, and/or TDY orders that show the exact day, month, and year he arrived in and departed from the Republic of Vietnam.  The letter also advised that while the LES for the period 1971 he provided showed he received HFP, it neither showed where the pay was earned nor the exact dates of service.  The applicant was further advised that documentary evidence such as assignment/attachment orders, TDY orders, group travel orders, morning reports, travel vouchers settlements, and/or affidavits from former members of the chain of command was required to process his application.  

8.  The applicant records contain no DD Form 215 (Correction to DD Form 214) to indicate his DD Form 214 was corrected.

9.  Army Regulation 635-5 (Separation Documents), dated 23 January 1967, specified that item 22c would contain the total amount of active duty served outside the continental limits of the United States during the period covered by the DD Form 214 and the last overseas theater in which the service was performed, e.g., "Foreign and/or Sea Service (USAREUR (United States Army Europe)", which is the command code.  Item 30 would be used to complete entries too long for their respective blocks.

10.  Army Regulation 635-5 also specified, in pertinent part, that a DD Form 214 would not be reissued once issued, in effect, if separated, the individual would be issued a DD Form 215.  When a DD Form 214 was issued or reissued, that fact would be entered in Item 18 (Remarks) unless the appellate authority, executive order, or secretarial directive specified otherwise.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records confirms that the applicant served in the Okinawa from 1 December 1970 to 23 September 1971, a period of 9 months and 23 days.  His records do not show he served in Vietnam for any time during his period of active service from 12 January 1961 through 12 November 1971.  He was released from active duty on 12 November 1971 and issued a DD Form 214. The record copy of that DD Form 214 shows in Item 22c he was credited with 8 months and 3 days of total foreign service and contained the entry "Okinawa" to identify the country of his foreign service during this period.  Item 24 showed 


no awards and Item 30 contained the entry "Vietnam Service None."  This DD Form 214 does not state it is a "Corrected Copy."  There is also no evidence he was issued a DD Form 215.

2.  The applicant provided a copy of a DD Form 214, dated 12 November 1971, showing in Item 22c the applicant was credited with 8 months and 3 days of total foreign service and contained the entry "Vietnam" to identify the country of his foreign service during this period.  Item 24 lists the Purple Heart.  Item 30 contained the entry "Vietnam Service None."

3.  Based on the applicant's last overseas duty station being Okinawa and in accordance with regulatory guidance, Item 22c of the record copy DD Form 214, dated 12 November 1971, properly shows the last country in which he served during the period covered by the DD Form 214.  Neither the evidence submitted with the application nor the evidence of record supports the applicant's request.  Therefore, he is not entitled to correction of Item 22c and Item 30 of his DD Form 214, dated 12 November 1971.

4.  The applicant is once again advised that there is no evidence in his records to verify he served in Vietnam and he has not shown otherwise.  Without this evidence the Board can take no action to correct his DD Form 214 to show this service.  He would need to submit a unit morning report showing his arrival and departure dates for Vietnam, assignment/attachment orders, TDY orders, and/or any documentation that specified he actually served in Vietnam.

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.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XXX____  ____XXX____  ____XXX____  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.




      _______ _   _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)                                         AR20090004503





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ABCMR Record of Proceedings (cont)                                         AR20090004503



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