IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029718 


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, award of the Overseas Service Ribbon and correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 18 November 1976 to show this award.

2.  He also requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active) for the period ending 16 November 1979 to show in:

* Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) the entry specialist four (SP4)/E-4 instead of private first class (PFC)/E-3
* Items 12 (Record of Service) he completed 6 years instead of 5 years and 5 months (sic) of military service
* Item 15 (Member Contributed to Post-Vietnam Era Veteran's Education Assistance Program (VEAP)) to show "Yes" instead of "No"

3.  He states that his DD Form 214 for the period ending 18 November 1976 does not show his Overseas Service Ribbon.  He served with Company C,
23rd Engineer Battalion, in Hanau, Germany from 1973 to 1976.  He further states his DD Form 214 for the period ending 16 November 1979 also does not classify him as being in the Vietnam Era and he was; that he was an E-4 when he was discharged and not an E-3; and that he had 6 years of military service and not 5 years and 5 months.  He wants his DD Forms 214 corrected so he can apply for his Purple Heart.


4.  He provides:

* his DD Form 214 for the period ending 18 November 1976
* his DD Form 214 for the period ending 16 November 1979
* Orders 03-1021066, issued by The Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, dated 25 March 1980, honorably discharging him from the Ready Reserve

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 19 November 1973 for a period of 6 years.  He was discharged from the USAR DEP on 29 November 1973 and he enlisted in the Regular Army (RA) on 30 November 1973 for a period of 3 years in pay grade
E-1.  He completed training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  On 7 April 1975, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 21 March 1975 and being absent without leave (AWOL) from 24 to 29 March 1975.  

4.  He served in Germany from 23 September 1975 through 6 December 1976, a period of 1 year, 2 months, and 14 days.  He was not credited with an overseas tour completion.  There is no evidence he served in Vietnam during this period of service.

5.  He was honorably discharged on 18 November 1976, in pay grade E-4, for the purpose of immediate reenlistment.  Item 18c (Total Active Service) of his
DD Form 214 for this period of service shows he completed 2 years, 11 months, and 14 days of total active service.  Item 18d (Prior Inactive Service) shows he completed 11 days of prior inactive service (his USAR DEP service).  Item 21 (Time Lost) and Item 27 (Remarks) show he had 5 days of time lost.  Item 18f (Foreign and/or Sea Service This Period) shows he completed 1 year, 1 month, and 26 days of foreign service during this period of service.

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period shows the National Defense Service Medal.

7.  On 19 November 1976, he reenlisted in the RA for a period of 3 years.

8.  On 11 February 1978, he accepted NJP under Article 15, UCMJ, for failing to obey a lawful written order by a lieutenant colonel, promulgated in a Commander's Policy Letter.

9.  On 22 February 1979, he accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on two occasions.  His punishment included a reduction to the grade of E-3, suspended for 60 days.

10.  On 27 August 1979, he accepted NJP under Article 15, UCMJ, for failing to obey a lawful written directive by driving his privately owned vehicle (POV) while his driving privileges were suspended; disobeying a lawful order by a Military Policeman; wrongfully possessing marijuana; and failing to go at the time prescribed to his appointed place of duty.  His punishment included a reduction to PFC/E-3.

11.  On 14 September 1979, the applicant's company commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant.  The company commander stated that the applicant's constant involvement with traffic law enforcement officials showed his inability to accept authority and conform to acceptable standards of off-duty conduct.  The applicant's post driving privileges had been suspended, his state driver's license suspended, and he had been cited/convicted twice for driving while intoxicated.  The applicant acknowledged receipt of the proposed bar to reenlistment and he elected not to submit a statement in his own behalf.  The bar to reenlistment was approved on 9 October 1979.

12.  On 19 November 1979, he was released from active duty at the completion of his required service (expiration of his term of service) with a general discharge. He was transferred to the USAR Control Group (Standby) to complete his remaining Reserve obligation.  Items 4a and b of the DD Form 214 he was issued for this period of service shows the entry PFC/E-3, respectively.  Item 12h (Effective Date of Pay Grade) shows the entry "79  08  27," indicating his date of rank for PFC/E-3 as 27 August 1979.

13.  Item 12c (Net Active Service This Period) shows he was credited with 2 years, 11 months, and 28 days of net active service this period.  Item 12d (Total Prior Active Service) shows he was credited with 2 years, 11 months, and 14 days of total prior active service this period.  He was also credited with 1 year, 2 months, and 24 days of foreign service.  He had no time lost during this period of service.

14.  Item 15 of his DD Form 214 shows the entry "XX" in the "No" block.

15.  Army Regulation 600-8-22 (Military Awards) states the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before
1 August 1981 provided they had an Active Army status on or after 1 August 1981.

16.  Army Regulation 635-5 (Separation Documents), dated 15 August 1979, in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 was a summary of a Soldier's most recent period of continuous service.  The regulation also stated that all service entered, less any time lost, for the period covered by the DD Form 214 would be entered in Items 12a through 12e.

17.  Army Regulation 635-5, further stated for item 15, if the Soldier contributed to VEAP and did not get money back, mark “YES.”  For those who enlisted before 1984, contributed to VEAP, and received their money back, mark “NO.”

18.  Department of Veterans Affair Federal Benefits for Veterans and Dependents, 2006 Edition, VEAP, stated active duty personnel could participate in VEAP if they entered active duty for the first time after 31 December 1976, and before 1 July 1985, and made a contribution prior to 1 April 1967.  

19.  The Vietnam Era is a term used by the Department of Veteran Affairs to classify veterans of the Vietnam War.  The Vietnam Era is considered to have begun in 1964 and ended in 1975.


DISCUSSION AND CONCLUSIONS:

1.  With regard to award of the Overseas Service Ribbon, the evidence of record does not show he completed a qualifying period of overseas service for award of the Overseas Service Ribbon for his service in Germany.  Therefore, he is not entitled to award of the Overseas Service Ribbon or its addition to either of his DD Forms 214.

2.  With regard to Items 4a and b on his DD Form 214 for the period ending 16 November 1979, the evidence of record shows he was reduced to PFC/E-3 on 27 August 1979 as a result of NJP action due to his misconduct.  There is no evidence he was advanced back to SP4/E-4 prior to his release from active duty on 16 November 1979.  Therefore, he is not entitled to correction to Items 4a and b 4b of his DD Form 214 for the period ending 16 November 1979 to show a rank/grade other than PFC/E-3 that is currently shown.

3.  With regard to Item 12c of his DD Form 214 for the period ending
16 November 1979, his service from 19 November 1976 through 16 November 1979 equals a period of 2 years, 11 months, and 28 days, which is properly shown on this DD Form 214.  His service from 30 November 1973 through 18 November 1976 equals a period of 2 years, 11 months, and 19 days, minus 5 days of time lost, is also properly shown in item 12d of this DD Form 214.  His total military service for the period ending 16 November 1979 equated to 5 years, 11 months, and 23 days of military service.  Therefore, there he is not entitled to correction to Items 12c and d of his DD Form 214 for the period ending
16 November 1979.

4.  With regard to Item 15 of his DD Form 214 for the period ending 16 November 1979, he contends the "Yes" block should be marked.  In accordance with regulatory guidance, if a Soldier contributed to VEAP and did not get money back, the "Yes" block would be marked.  For those individuals who enlisted before 1984, contributed to VEAP, and received their money back, the "No" block would be marked.

5.  The evidence of record also shows he initially enlisted (first time) in the RA on 30 November 1973 and active duty personnel could participate in VEAP if they entered active duty for the first time after 31 December 1976.  Therefore, he could not participate in VEAP with future entitlement to receive any money back. It is also noted that item 15 does not pertain to classifying veterans of the Vietnam War.

6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100029718



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ABCMR Record of Proceedings (cont)                                         AR20100029718



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