IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090010173 


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 (Report of Separation from Active Duty) for the period ending 7 July 1976 to document service in the Republic of Vietnam (RVN).  

2.  The applicant states, in effect, his 1976 DD Form 214 should be corrected to document service in the RVN.  

3.  The applicant provides a Department of Veterans Affairs (VA) letter, dated 
1 November 2008, 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's record shows he initially enlisted in the Regular Army (RA) and entered active duty on 22 June 1964.  He served on active duty for
3 years until being honorably released from active duty on 21 June 1967 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The DD Form 214 he was issued for this period of service documents no RVN service and lists no RVN service awards.  

3.  On 9 April 1969, the applicant again enlisted in the RA and he served for
2 years, 2 months, and 29 days until being honorably discharged on 7 July 1971 for the purpose of immediate reenlistment.  The DD Form 214 he was issued for this period of service documents no RVN service and lists no RVN service awards.  On 8 July 1971, he reenlisted for 5 years and continued serving on active duty.  

4.  The applicant's last DA Form 20 (Enlisted Qualification Record), which was prepared on 10 July 1972 and last audited by the applicant on 22 March 1974, shows, in item 31 (Foreign Service), that he served in Korea from 8 September 1965 through 7 October 1966 and in Hawaii from 2 February 1971 through 
1 February 1974.  Item 31 documents no overseas service in the RVN.  Item 38 (Record of Assignments) shows he was assigned to the 2nd Engineer Battalion in Korea from 11 September 1965 through 7 October 1966; to Company C, 7th Engineer Battalion, Fort Carson, Colorado from 20 November 1966 until he separated in June 1967; and to Tripler Army Medical Center in Hawaii from         2 February 1971 through 1 February 1974.  No other overseas assignment locations are listed in item 38.  Item 39 (Campaigns) is blank, indicating no participation in RVN campaigns, and Item 41 (Awards and Decorations) is void of any RVN service or unit awards the applicant would have been eligible for based on RVN service. 

5.  A DA Form 2-1 (Personnel Qualification Record) prepared on the applicant on 11 May 1976 also documents overseas service in Korea and Hawaii in item 5 (Overseas Service).  Item 9 (Awards, Decorations & Campaigns) is also void of any documented RVN service awards or campaign participation entries that would indicate service in the RVN.  Item 35 (Record of Assignments) is also void of any assignment entries indicating service with any unit in the RVN.  There are no orders or other documents on file in the applicant's Official Military Personnel File (OMPF) that show he ever served in the RVN.  

6.  On 7 July 1976, the applicant was honorably discharged after completing a total of 11 years, 2 months, and 29 days of active military service.  The DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge) issued upon his release from active duty (REFRAD) on 21 June 1967 and his reenlistment on 7 July 1971, and the DD Form 214 issued upon his discharge on 7 July 1976 document no RVN service or service awards.

7.  The applicant's record also shows that subsequent to completing his active duty service in 1976, he served in a Reserve Component (RC) in both officer and enlisted statuses between 22 August 1977 and 8 March 1983, with an additional period of RA service on active duty from 8 April 1981 through 10 March 1982.  There is also no documented evidence of any RVN service or RVN service awards during these periods of service.   

8.  Multiple DA Forms 2-1 were prepared on the applicant during his RC service. The last one, which was prepared on 24 June 1983, lists no overseas service in item 5 and lists no RVN awards or campaign participation in item 9.  The DA Form 2-1 prepared and last reviewed by the applicant on 14 April 1981 lists his overseas service in Korea and Hawaii in item 5 and lists no RVN awards or campaign participation in item 9.  A DA Form 2-1 prepared on 22 August 1977 and last reviewed by the applicant on 14 June 1979 lists RVN service from June 1966 through May 1967 in item 5.  No RVN service awards or campaign participation is listed in item 9 of this DA Form 2-1. 

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on preparing the DD Form 214.  The version of the regulation in effect at the time of the applicant's discharge on 7 July 1976, required that if the yes block was checked in item 19 (Indochina or Korea Service Since August 5, 1964) and it was based on Indochina service in the RVN an entry specifically identifying RVN service would be added in the block.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 1976 DD Form 214 should be corrected to document RVN service was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  With the exception of one isolated entry on a DA Form 2-1 prepared in 1977, while the applicant was serving in a RC, the evidence of record fails to show the applicant ever served in the RVN.  The DA Forms 20 and DA Forms 2-1 covering his active duty service through 1976 confirm he completed overseas tours in Korea and Hawaii; however, they document no RVN service and list no RVN service awards or campaign participation.  
3.  The applicant's 1977 DA Form 2-1 contains an entry in item 5 indicating RVN service from June 1966 through May 1967.  However, his actual records for that period confirm he served in Korea from September 1965 through October 1966, and at Fort Carson, Colorado, from November 1966 through his REFRAD on 
21 June 1967.  As a result, this one RVN service entry was obviously in error and therefore, absent any evidence of record or independent evidence confirming RVN service, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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.



      __________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)                                         AR20090010173



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ABCMR Record of Proceedings (cont)                                         AR20090010173



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