BOARD DATE: 1 March 2011
DOCKET NUMBER: AR20100021493
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 correction of his record to show he entered military service on 20 April 1975.
2. The applicant states he enlisted in the Army on 20 April 1975 but did not go to basic training immediately because he was recovering from a hernia operation he underwent on 7 February 1975. His recruiter suggested a September entry date to ensure he was fully recuperated from his surgery. He further states a DD Form 215 (Correction to DD Form 214) showing an earlier entry date would confirm his Vietnam-era status.
3. The applicant provides copies of:
* his enlistment documents
* special orders assigning him to inactive duty in the U.S. Army Reserve (USAR) and ordering him to report for active duty by 10 September 1975
* records confirming he underwent surgery for a hernia on 7 February 1975
* special orders awarding him a primary military occupational specialty (MOS) and assigning him to Headquarters and Headquarters Company, V Corps
* orders discharging him from the Ready Reserve
* his DA Form 2-1 (Personnel Qualification Record)
* his DD Form 214 (Report of Separation from Active Duty)
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. A DD Form 4 (Enlistment Contract) shows the applicant enlisted in the USAR in the Delayed Entry Program (DEP) on 22 April 1975.
3. Special Orders Number 78-8, issued by the Armed Forces Examining and Entrance Station (AFEES), Oakland, CA, on 22 April 1975, assigned him to inactive duty in the USAR and ordered him to report for active duty on 10 September 1975.
4. A second DD Form 4 shows he enlisted in the Regular Army for a period of 3 years on 10 September 1975.
5. He was honorably relieved from active duty and transferred to the USAR on 1 September 1978 after completing 2 years, 11 months, and 22 days of active military service. He was honorably discharged from the USAR on 21 April 1981 after completing his 6-year service commitment.
6. His DD Form 214 shows:
* in item 15 (Date Entered Active Duty This Period) 10 September 1975
* in item 18(d) (Prior Inactive Service) 4 months and 18 days
7. He provides a memorandum, dated 26 March 1975, from a surgeon to the Army Recruiting Office, Redwood City, CA, confirming he underwent surgery for an inguinal hernia on 7 February 1975 and was to be considered recovered 6 weeks from the date of surgery.
8. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. A DD Form 215 may be issued if a DD Form 214 contains errors or is missing information.
9. Certain Department of Veterans Affairs (VA) benefits require wartime service, generally active duty service. Under the law, VA recognizes the period 5 August 1964 through 7 May 1975 to be the "Vietnam War-era."
DISCUSSION AND CONCLUSIONS:
1. The available documentation shows no errors the applicant's record, nor has he provided evidence showing any errors. Although he enlisted in the DEP on 22 April 1975 (which is indicated by the entry in item 18d of his DD Form 214), he did not enter active duty until 10 September 1975.
2. His DD Form 214 correctly shows the date he entered active duty and the time he spent on inactive duty in the USAR. Unfortunately, it appears he does not meet the criteria to be considered a "Vietnam-War era" veteran.
3. In view of the foregoing, there is no basis for granting the requested relief.
BOARD VOTE:
____x____ _____x___ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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) AR20100021493
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