IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003419 


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) by amending the following items:

	a.  Item 1 (Last Name, First Name, and Middle Name) to reflect his middle name as “V--dhu-s” instead of “V—tha—e”;

	b.  Item 5a (Grade, Rate or Rank) to reflect “Specialist Four (SP4)” instead of "Private First Class (PFC)"; 

	c.  Item 5b (Pay Grade) to reflect “E-4” instead of “E-3”; and 

	d.  Item 22c (Foreign and or Sea Service) to reflect “11 months and 18 days” instead of “10 months and 11 days.”

2.  He states he discovered the errors when he was applying for healthcare.  

3.  He provides:

* His DD Form 214
* A request for information letter 

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.  His military personnel record shows he was inducted into the Army of the United States on 2 June 1966.  His DD Form 47 (Record of Induction) does not list his middle name. 

3.  His record shows a U.S. Army Request for National Agency Check was completed on 14 October 1966.  This form shows his middle name spelled “V—tha—e.”

4.  On 12 February 1968, the applicant completed a DA Form 41 (Record of Emergency Data) which shows his middle name spelled as “V—tha—e.”

5.  His record contains Special Orders Number 159, dated 8 June 1967.  This order shows he was scheduled to report to the U.S. Army Oversea Replacement Station, Oakland, CA on 6 July 1967 for further assignment to the 69th Signal Battalion in the Republic of Vietnam (RVN). 

6.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) – he served in the RVN from 9 July 1967 
   through 24 May 1968
* Item 33 (Appointments and Reductions) – the highest grade he attained while in the Army was PFC (permanent (P)) on 16 February 1967 
* Item 38 (Record of Assignments) – he was enroute to Vietnam on 9 June  and was assigned to his unit on 15 July 1967
* Item 38 – he departed Vietnam on or about 18 May 1968 en route to the United States


7.  On 20 May 1968, he was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve after serving 1 year, 11 months, and 19 days of net service.  His DD Form 214 shows the following entries:

* Item 1 – K R “V—tha—e”
* Item 5a – PFC (P)
* Item 5b – E-3
* Item 22c – 10 months and 11 days

8.  His records are void of documentation showing he was advanced to the rank of SP4/E-4.  

9.  The letter from the Tuolumne County Veterans Service Office shows his middle name is spelled as “V--dhu-s.”

10.  Army Regulation 635-5 (Separation Documents), the version effective 
23 January 1967, provided guidance on the preparation of the DD Form 214.  This regulation stated that:

   a.  Item 1 of the DD Form 214 would contain the name taken from the Soldier’s personnel record;

     b.  Items 5a and 5b show the rank/grade in which a member was serving at the time of separation indicating whether the rank was permanent or temporary; and

   c.  Item 22c would show the total active service outside of the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which the service was performed would also be entered in this item.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The middle name shown on his DD Form 214 and all other available service documents reflect his middle name as “V—tha—e.”  His records show he served his entire military career in the name shown on his DD Form 214.
2.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in the available records should reflect the conditions and circumstances that existed at the time the records were created.  While it is understandable that the applicant desires to now record his current name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  A copy of this Record of Proceedings will be filed in his Official Military Personnel File to record the middle name he is currently using.

3.  The applicant has not provided sufficient documentation, nor does his record contain any evidence, to show he was promoted to SP4/E-4 at any time prior to his separation on 20 May 1968.  Therefore, in the absence of evidence, there appears to be no error or injustice pertaining to his rank/pay grade.  As such, items 5a and 5b of his DD Form 214 correctly shows his rank as PFC (P)/E-3.     

4.  His records show he reported to the oversea replacement station on 6 July 1967 for further assignment to Vietnam.  His DA Form 20 shows in item 31 that he arrived on 9 July 1967.  It is reasonable to presume that he did, in fact, arrive in Vietnam on or about 9 July 1967.  

5.  His DD Form 214 shows he was honorably REFRAD on 20 May 1968, thus making the 24 May 1968 departure date shown in item 31 of his DA Form 20 incorrect.  Item 38 of his DA Form 20 shows a departure date of 18 May 1968, which is more consistent with his REFRAD of 20 May 1968. 

6.  His record shows various dates of arrival and departure to and from Vietnam which are inconsistent.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-5, chapter 2 which prescribed the instructions for entering the Soldier's foreign service in item 22c of the DD Form 214.  Therefore, in the absence of evidence to the contrary, it is concluded that the entry in item 22c of the applicant’s 
DD Form 214 correctly reflects his foreign service in Vietnam. 

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)                                         AR20110003419



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ABCMR Record of Proceedings (cont)                                         AR20110003419



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