IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090009861 


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 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 1995 to show his prior active and inactive service.  

2.  The applicant states, in effect, that his DD Form 214 for the period ending 
30 April 1995 is incomplete and needs to include his Vietnam era record of service, assignments, specialties, education, remarks, and awards.  He also contends that this DD Form 214 has no information from his U.S. Army Reserve (USAR) service.

3.  The applicant provides DD Forms 214 for the periods ending 30 April 1995 and 26 October 1971; a Personnel Qualification Record - Part I; a Personnel Qualification Record - Part II; and a Department of Veterans Affairs (DVA) Rating Decision 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.  The applicant was inducted into the Army of the United States on 24 February 1970.  He served as a light weapons infantryman and was released from active duty on 26 October 1971 and transferred to the USAR to complete his remaining service obligation.

3.  The applicant’s DD Form 214 for the period ending 26 October 1971 shows that he completed 1 year, 8 months, and 3 days of creditable service in item 22a(1) (Net Service This Period).  This DD Form 214 does not show any foreign service.  This DD Form 214 shows the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar as authorized awards.

4.  Item 31 (Foreign Service) on the applicant's DA Form 20 (Enlisted Qualification Record) is blank.

5.  There is no evidence of record which shows the applicant served in Vietnam.

6.  The applicant enlisted in the Regular Army on 4 January 1977 for a period of 4 years.  He remained on active duty through continuous reenlistments until he retired on 30 April 1995 in the rank of staff sergeant.

7.  Item 12d (Total Prior Active Service) on the applicant's DD Form 214 for the period ending 30 April 1995 shows the entry "01 08 03."  Item 12e (Total Prior Inactive Service) on this DD Form 214 shows the entry "04 04 11" [4 years, 
4 months, and 11 days]. 

8.  Item 5 (Oversea Service) on the applicant's DA Form 2-1 shows he served two tours in Germany.  Item 35 (Record of Assignments) on his DA Form 2-1 shows he served in the USAR Control Group from 27 October 1971 to 
14 September 1974 and he served in the USAR from 15 September 1974 to 
23 February 1976.

9.  In support of his claim, the applicant provided a DVA Rating Decision, dated 22 December 2006, one page of which states, in pertinent part, that his service records revealed that he served in the country of Vietnam.  Another page stated that his service medical records were negative for evidence that he served on active duty in Vietnam.

10.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

11.  Army Regulation 635-5 states, in pertinent part, that from previously-issued DD Forms 214, enter the total amount of prior active military service less lost time, if any, in item 12d on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a "snapshot in time" and is a reflection of the applicant's record of active Army service at the time of his separation from active duty.  

2.  Evidence of record shows the applicant was inducted on 24 February 1970 and was released from active duty on 26 October 1971 after completing 1 year, 
8 months, and 3 days of creditable active service, which is properly reflected on his DD Form 214 for the period ending 26 October 1971.  He enlisted in the Regular Army on 4 January 1977 and retired on 30 April 1995.  His prior active service (24 February 1970 through 26 October 1971) is properly shown in item 12d on his DD Form 214 for the period ending 30 April 1995 and his prior inactive service is properly shown in item 12e on this DD Form 214.  Therefore, there is no basis for granting the applicant’s request to amend his DD Form 214 for the period ending 30 April 1995 to show his prior active and inactive service.  A copy of his 1971 DD Form 214 will be provided to him.

3.  Notwithstanding the portion of the DVA Rating Decision that stated his service records revealed he served in Vietnam, there is no evidence of record which shows the applicant served in Vietnam.    

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)                                         AR20090009861



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ABCMR Record of Proceedings (cont)                                         AR20090009861



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