IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100008404 


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 reconsideration of an earlier request to upgrade his undesirable discharge.  He also requests correction of his DD Form 214 (Report of Transfer or Discharge) to show his service in Vietnam, which is a new issue.

2.  The applicant states:

* The type of discharge he was given for being absent without leave after being exposed to the violence in Vietnam is unfair
* As a young man he thought he could handle Army life but while in Vietnam he was scared constantly and his mental state was not good
* His DD Form 214 does not reflect his duty in Vietnam
* He has suffered for years with (Agent Orange) Type II diabetes and hepatitis C, both of which he feels he contracted in Vietnam
* His is submitting a claim with the Department of Veterans Affairs regarding his disabilities

3.  The applicant provides:

* Emergency leave orders
* DD Form 214





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 requested upgrade of his undesirable discharge.  On 
16 September 2004, the ABCMR denied the applicant's request for a general discharge.  The applicant's request for reconsideration was not received within one year of the ABCMR's original decision as required by Army Regulation 
15-185 (ABCMR), paragraph 2-15 (Reconsideration of ABCMR decision).  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant enlisted in the Regular Army on 21 January 1971 for a period of 3 years.  He trained as a motor transport operator.  His DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 25 July 1971 and was assigned to the 86th Transportation Company.  Emergency leave orders show the applicant was granted 30 days of emergency leave on 11 January 1972 to visit his mother (illness) in the United States.  His DA Form 20 shows he was attached to Headquarters, Installation Support Activity, Granite City, Missouri on 10 February 1972.  On 16 June 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.   

4.  The applicant's DD Form 214 shows the Sharpshooter Marksmanship Qualification Badge with Rifle Bar as an authorized award.  Item 22c (Foreign and/or Sea Service) of his DD Form 214 shows the entry "0 0 0."  Item 
30 (Remarks) of his DD Form 214 does not show any service in Vietnam.  Item 30 also shows the applicant was separated on temporary records.

5.  Item 41 (Awards and Decorations) on the applicant's DA Form 20 shows entitlement to the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).

6.  Records show the applicant participated in two campaigns during the period 25 July 1971 to 11 January 1972 in Vietnam.

7.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973.

8.  Army Regulation 635-5 (Personnel Separations/Separation Forms) governed the preparation of the DD Form 214.  The regulation in effect at the time provided that the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which the service was performed would be entered in item 22c.  The regulation also required that service on or after 5 August 1964 in Indochina and Korea be shown in item 30 with the inclusive dates of service in Vietnam and the entries "Yes" or "No" for service in Indochina and Korea.

9.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.

10.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal with Device (1960).  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant served in Vietnam from 25 July 1971 to 11 January 1972, a total of 5 moths and 18 days.  Therefore, item 22c of his DD Form 214 should be corrected to show his last overseas theater was 


U.S. Army Pacific [USARPAC] and he served 5 months and 18 days of foreign service.  In addition, item 30 of his DD Form 214 should be corrected to show he served in Vietnam from 25 July 1971 to 11 January 1972.  

2.  As a related issue and based on the applicant's service in Vietnam, he is eligible for award of the Vietnam Service Medal with two bronze service stars.

3.  Since the applicant did not serve 6 or more months in Vietnam as required by the governing awards regulation, he is not eligible for the Republic of Vietnam Campaign Medal with Device (1960). 

4.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units that served in Vietnam.  The applicant served in Vietnam during a qualifying period and is eligible for this award.  Therefore, it would be appropriate to add this foreign unit award to his DD Form 214.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding the entry "USARPAC" to item 22c of his DD Form 214;

	b.  deleting the entry in item 22c on his DD Form 214 and replacing it with 
"0 5 18";

	c.  adding the Vietnam Service Medal with two bronze service stars and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) on his DD Form 214; and

	d.  adding the entry "Vietnam Service:  25 July 1971 to 11 January 1972" to item 30 of his DD Form 214.



      _______ _   __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)                                         AR20100008404



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ABCMR Record of Proceedings (cont)                                         AR20100008404



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