IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20090021165 


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, that he be issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged for permanent disability retirement and all of the Air Medals he was awarded.

2.  The applicant states, in effect, he did not know his DD Form 214 was in error, as he had no need to look at it until now.  He was permanently retired on 29 February 1972.  He also states, in effect, he was awarded Air Medals while serving in Vietnam and they are not shown on his DD Form 214.  

3.  The applicant provides copies of his DD Form 214 and Temporary Disability Retired List (TDRL) orders.

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.  His military records show he was inducted into the Army of the United States (AUS) on 25 September 1967.  He completed training in military occupational specialty 11B, Infantryman.  He served in Vietnam from 8 March to 28 December 1968 with Company C, 2nd Battalion, 5th Cavalry, 1st Cavalry Division (Airmobile). 

3.  His records contain General Orders Number 13347, dated 21 October 1968, showing he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam from March 1968 to October 1968.  There are no orders in his records for award of additional Air Medals.

4.  On 2 February 1970, a Medical Evaluation Board (MEB) considered the applicant's medical conditions and referred him to a Physical Evaluation Board (PEB).  The applicant agreed with the MEB's findings and recommendations. 

5.  On 20 February 1970, an informal PEB convened and considered his disabilities of muscle injury, chronic osteomyelitis, scars, and shortening of left femur.  The PEB determined that his medical condition prevented performance of duty in his grade and military specialty and placed him on the TDRL.  The PEB findings and recommendations were approved on 5 March 1970.

6.  The applicant was honorably retired from active duty in pay grade E-4 on 2 April 1970 and placed on the TDRL.  He was issued a DD Form 214 showing in Item 11c (Reason and Authority) he was being placed on the TDRL.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  the National Defense Service Medal, the Combat Infantryman Badge, the Vietnam Service Medal, the Air Medal, the Purple Heart, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

8.  His DA Form 20 (Enlisted Qualification Record), Item 41 (Awards and Decorations), does not show he was awarded more than one Air Medal.

9.  Letter Orders Number D 2-14, dated 3 February 1972, were issued by the Office of The Adjutant General removing him from the TDRL and permanently retiring him effective 29 February 1972.


10.  A review of the Awards and Decorations Computer Assisted Retrieval System of the records of his unit and for the time frame he served in Vietnam was conducted.  This review failed to show orders were published authorizing him additional Air Medals.

11.  Army Regulation 635-5 (Personnel Separations – Separation Documents), then in effect, established a standardized policy for the preparation of the 
DD Form 214.  In pertinent part, it provided the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service.  It  specified in paragraph 2-1(a)(2) that a DD Form 214 would be prepared for Active Army Soldiers on termination of active duty, Reserve Component Soldiers completing 90 days or more of continuous active duty training, or Active Guard Reserve Soldiers on active.  Paragraph 2-1b(3) specified that a DD Form 214 would not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was inducted into the AUS on
25 September 1967.  On 20 February 1970, an informal PEB found him physically unfit and recommended that he be placed on the TDRL.  On 2 April 1970, he was retired from active duty and placed on the TDRL.  He was properly issued a DD Form 214 showing he was placed on the TDRL.  Effective 
29 February 1972, he was issued orders that show he was removed from the TDRL and permanently retired.  

2.  There is no evidence that shows he served in an active duty status after 
2 April 1970 that would qualify him for the issuance of a second DD Form 214.  Therefore, he is not entitled to a new DD Form 214 to show he was discharged for permanent disability retirement.

3.  The available evidence shows the applicant was authorized one Air Medal and this medal is shown on his DD Form 214.  There is no evidence to show he was awarded more than one Air Medal.  He has not shown error, injustice, or inequity for the relief he now requests.

4.  In order to justify correction of a military record, the applicant must show, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request. 





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)                                         AR20090021165



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ABCMR Record of Proceedings (cont)                                         AR20090021165



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