IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100021824 


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 201 File (Military Personnel Records Jacket (MPRJ)) by:

* including his temporary duty (TDY) orders for Vietnam
* showing he was awarded the Army Good Conduct Medal
* removing a Criminal Investigation Division (CID) report

3.  He states his 201 File was lost in 1973 and it had to be reconstructed.  His TDY orders and Army Good Conduct Medal were not included in the reconstructed file.  Nothing came of the CID investigation and his photo was shown more than three times before identification was made.  He has been out of the service for 22 years and he has lived an honorable civilian life.

4.  He provides no additional evidence.

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.  There is no evidence the applicant's records were lost or that his records were among the 18 million service members’ records destroyed in the fire at the National Personnel Records Center in 1973.  Based on the limited amount of records contained in his official military personnel file, it appears his records were reconstructed.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available military records show he enlisted in the Regular Army (RA) on 18 March 1970, for 3 years.  He completed the training requirements and he was awarded military occupational specialty (MOS) 67H, Airplane Repairman.  He served in Alaska from 2 December 1970 through 25 February 1972.  

4.  He was honorably released from active duty in pay grade E-4 on 26 February 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for the purpose of joining a USAR unit.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) crediting him with completing 1 year, 11 months, and 9 days of net active service this period and 1 year, 2 months, and 24 days of foreign service in the USARAL (U.S. Army Alaska).

5.  Item 24 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  the National Defense Service Medal, Aircraft Crewman Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 30 (Remarks) contains the entry "Vietnam Service - None."  There is also no evidence in his records that indicate he was issued TDY orders for Vietnam or that he served in Vietnam during this period of service.

6.  On 25 May 1972, he again enlisted in the RA in pay grade E-3 for 3 years.  He again served in Alaska from 25 May 1972 through 29 November 1973.  He was honorably discharged on 26 February 1975 for the purpose of immediate reenlistment in pay grade E-4.  His DD Form 214 (Report of Separation from Active Duty) credits him with completing 2 years, 9 months, and 2 days of net active service this period and 1 year, 6 months, and 24 days of foreign service.  Item 26 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal.
7.  There is no evidence in his available records that indicate he was issued TDY orders for Vietnam or that he served in Vietnam during the above period of service.

8.  He reenlisted in the RA on 27 February 1975 for 6 years.  

9.  A DA Form 3975-1 (Commander's Report of Disciplinary Action Taken), dated 21 December 1976, indicates the applicant appeared in Thurston County Superior Court on 2 June 1976 where he pled guilty to one count of (rape) and the court ordered him to be evaluated at Western State Hospital.  On 3 November 1976, he reappeared in court where he was ordered to be confined as a sexual psychopath and sentenced to serve 20 years in the Washington State Reformatory.

10.  A DA Form 3975 (Part B - Military Police Report), dated 1977, shows the applicant was charged with rape on 29 April 1976.  His records are void of a CID report for the rape charge or any other offense.

11.  All the documents containing the facts and circumstances surrounding his discharge process are not in the available records.  However, his records contain a DD Form 214 which shows he was discharged on 2 December 1977, under the provisions of Army Regulation 635-206 (Conviction by Civil Court), for misconduct-conviction by civil court or adjudged a juvenile offender.  He was issued an undesirable discharge.  He was credited with completion of 11 months and 28 days of net active service this period and he had 643 days of lost time.  Item 18f (Foreign and/or Sea Service This Period) contains no service.

12.  On 10 March 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  On 15 July 1980, the ABCMR advised him that he had not exhausted his administrative remedies for removal of a CID report from his official military personnel file.  He was advised to apply to the U.S. Army Criminal Investigation Command, Falls Church, VA for removal of the alleged report.

14.  On 22 December 1982, the ABCMR denied his request for an upgrade of his discharge.  

15.  His records contain General Orders Number 2773 issued by the 9th Infantry Division on 18 December 1975 awarding him the Army Good Conduct Medal for the period of service from 16 June 1970 through 15 June 1973.

16.  Army Regulation 635-206, then in effect, provided that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniformed Code of Military Justice included confinement of 1 year or more was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was awarded the Army Good Conduct Medal.  Therefore, he is entitled to correction of his DD Form 214 for the period ending 26 February 1975 to show this award.  

2.  There is nothing in the available records and he did not provide any evidence to show he was issued TDY orders for Vietnam or that he served in Vietnam during any of his three periods of active duty.  In the absence of evidence to support his request he is not entitled to have his MPRJ corrected to show he served in Vietnam or that he was issued TDY orders for Vietnam.

3.  The available evidence shows he was convicted in civil court and sentenced to confinement in June 1976.  A DA Form 3975-1 was issued for this conviction.  He was subsequently discharged from the RA on 2 December 1977.  

4.  There is also nothing in the available records and he did not provide any evidence to show a CID report was issued for the offense for which he was convicted.  If he was titled in a CID report it is his obligation to provide that report with his request for removal of his name from the titling action.  He was advised by this Board on 15 July 1980 he needed to apply to the U.S. Army Criminal Investigation Command for removal of the alleged report.  There is no evidence this has been done.  

5.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
   
   a.  adding to Item 26 of his DD Form 214 for the period ending 26 February 1975 the Army Good Conduct Medal (1st Award); and 
   
   b.  providing him a document that includes this change.
   
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to inclusion of temporary duty orders for Vietnam in his official MPRJ and removal of a Criminal Investigation Division report from his records.



      _______ _   _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)                                         AR20100021824



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021824


   
2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1