IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025920


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his dates of service in Vietnam, specifically during the Tet Counteroffensive Campaign which was conducted between 30 January 1968 and 1 April 1968.

2.  The applicant states he was with the 1st Squadron, 17th Cavalry Regiment, 82nd Airborne Division, during the Tet Counteroffensive and they fought in Hue and Phu Bai.  He states he suffered a shrapnel wound during a firefight at Phu Bai, for which he was awarded the Purple Heart (2nd Award), but aside from this, there seems to be little reference to his second Vietnam tour in his records.

3.  Additionally, the applicant states his records were tampered with by the Federal Bureau of Investigation under an operation known as the Counter Intelligence Program and he wrongfully spent 27 years in prison before he was fully exonerated.

4.  The applicant provides page 1 of Army Board for Correction of Military Records (ABCMR) Docket Number AR20050003439 and an Army Review Boards Agency memorandum, dated 24 January 2006.

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 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 records show he enlisted in the Regular Army for a 3-year term on 7 June 1965.  He completed training and was awarded military occupational specialty 11D (Armor Intelligence Specialist).

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during two separate tours, from 17 January 1966 to 13 January 1967 and from 14 February 1968 to an unspecified date.

4.  The Adjutant General's Office (TAGO) Form 166 (Statement of Military Service), dated 18 May 1972, credits him with foreign service during the periods 17 January 1966 to 13 January 1967 and 14 February 1968 to 20 May 1968.

5.  On 27 May 1968, he was honorably released from active duty in the rank/pay grade of sergeant/E-5 and transferred to the U.S. Army Reserve Control Group for the remainder of his service obligation.  His DD Form 214 shows he completed 2 years, 11 months, and 20 days of active service.  Item 22c (Foreign and/or Sea Service) of his DD Form 214 shows he completed 1 year, 2 months, and 29 days of foreign service in the U.S. Army Pacific (USARPAC) theater of operations.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the:

* Soldier's Medal
* Purple Heart
* Air Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Parachutist Badge

7.  A DD Form 215 (Correction to DD Form 214), dated 20 July 2006, amended item 24 of his DD Form 214 for the period ending 27 May 1968 by deleting the Purple Heart and the Vietnam Service Medal and by adding the:

* Purple Heart (1st Oak Leaf Cluster)
* Vietnam Service Medal with two bronze service stars
* Army Good Conduct Medal
* Army Commendation Medal
* Presidential Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Expert Marksmanship Qualification Badge with Automatic Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 in effect at the time contained guidance on the preparation of the DD Form 214.  It stated item 22c would show 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 service was performed (e.g., USARPAC, etc.).  Furthermore, item 30 (Remarks) was used for Department of the Army mandatory requirements when a separate block is not available and as a continuation entry.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows he served in the Vietnam during two separate tours for a period of 1 year, 2 months, and 29 days from 17 January 1966 to 13 January 1967 and from 14 February 1968 to 20 May 1968.  Therefore, it would be appropriate to amend item 30 of his DD Form 214 to add "SERVICE IN USARPAC (VIETNAM) BETWEEN 17 JANUARY 1966 AND 13 JANUARY 1967 AND BETWEEN 14 FEBRUARY 1968 AND 20 MAY 1968."

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a partial recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 30 of his DD Form 214 to add "SERVICE IN USARPAC (VIETNAM) BETWEEN 17 JANUARY 1966 AND 13 JANUARY 1967 AND BETWEEN 14 FEBRUARY 1968 AND 20 MAY 1968."



      ____________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)                                         AR20100017975



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ABCMR Record of Proceedings (cont)                                         AR20100025920



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