IN THE CASE OF:
BOARD DATE: 14 June 2011
DOCKET NUMBER: AR20100028923
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 he was released from active duty on 6 October 1970 instead of 4 October 1970.
2. The applicant states he was still in Vietnam on 5 October 1970.
3. The applicant provides:
* his DD Form 214
* Special Orders Number 277, issued by Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 4 October 1970
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. The applicant enlisted in the Regular Army on 5 November 1968. He completed initial entry training and he was awarded military occupational specialty 12B (combat engineer). The highest rank/grade he attained was sergeant (SGT)/E-5.
3. Special Orders Number 277, dated 4 October 1970, released the applicant from active duty effective 4 October 1970.
4. The Transfer or Discharge Data section of the DD Form 214 he was issued upon his release from active duty shows he was honorably released from active duty effective 4 October 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation. This form shows he completed a 1 year and 11 months of total active service.
5. Item 30 (Remarks) of his DD Form 214 contains an entry showing he served in the Republic of Vietnam during the period 6 October 1969 to 5 October 1970.
6. Item 31 (Foreign Service) of his DA Form 20 shows his service in Vietnam as 6 October 1969 through 5 October 1970. The 5 October 1970 entry is a pencil entry.
7. Item 38 (Record of Assignments) of his DA Form 20 shows he was en route to the Continental United States (CONUS) on 2 October 1970.
8. Army Regulation 635-5 (Separation Documents) states a DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. It states for item 11d, enter the date separation is accomplished.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 shows in the remarks section that he served in Vietnam during the period 6 October 1969 to 5 October 1970. It is presumed that these dates were taken from the entry in item 31 of his DA Form 20. His Vietnam service ending date was a pencil (temporary) entry which would have been his projected tour ending date which was typically a 1-year tour.
2. Item 38 of his DA Form 20 shows he was en route to CONUS on 2 October 1970. Special Orders Number 277 and his DD Form 214 show the effective date of his release from active duty as 4 October 1970. As such, it appears the
effective date of his release from active duty is correct as shown and that his period of Vietnam service shown in item 30 of his DD Form 214 is in error. Since it appears there is no error in the date he was separated from active duty, there is no basis for correcting his DD Form 214 to show he was separated on
6 October 1970.
3. Additionally, it has long been an unwritten policy of the ABCMR not to make an applicant worse off than when he/she applied to this Board. Therefore, the ABCMR will not correct Item 30 of his DD form 214 to show that his service in Vietnam ended earlier than that currently shown.
4. 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) AR20100028923
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ABCMR Record of Proceedings (cont) AR20100028923
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