IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120000837 


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 the following:

* 18 months of foreign service in the Republic of Vietnam
* award of the Vietnam Campaign Medal with Device (1960)
* award of the Vietnam Service Medal
* exposure to Agent Orange
* his middle name as "Wxxxxam" rather than "Wxxxxams"  

2.  The applicant states:

* he was assigned to Company C, 78th Engineer Battalion, APO 09351, and was sent to Vietnam
* he provided support in the Northern provinces and was assigned to the "336th" of the 101st Airborne while in Vietnam and served 18 months
* he is attempting to show exposure to Agent Orange for Department of Veterans Affairs (VA) healthcare benefits
* his service dates are 9 September 1969 to 24 November 1971 at Fort Leonard Wood, MO

3.  The applicant provides:

* self-authored statements
* Illinois VA transmittal sheet
* 2 DD Forms 214
* Honorable Discharge Certificate
* Letter, Review Boards Agency, Support Division, St. Louis, MO, dated 12 June 2008
* VA Form 21-4138 (Statement in Support of Claim), dated 4 January 2012 

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.  After completing a prior period of active duty service, the applicant reenlisted in the Regular Army on 26 June 1970.  His military occupational specialty was 12B (Combat Engineer).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was assigned to the U.S. Army Europe, Germany, for the period 22 February 1970 to 20 July 1970.

4.  Item 38 (Record of Assignments) of his DA Form 20 does not show he was assigned to a unit in the Republic of Vietnam. 

5.  The applicant's DD Form 4 (Enlistment Contract – Armed Force of the United States), dated 27 June 1970, shows:

* he reenlisted for duty in the Republic of Vietnam
* he was assigned to Company C, 78th Engineer Battalion, Rheinland Kaserne, Ettlingen, Germany

6.  Special Orders Number 157 Extract, Headquarters VII Corps, APO 09107, dated 30 June 1970, shows the applicant was discharged and reassigned to Company C, 78th Engineer Battalion, Rheinland Kaserne, Ettlingen, Germany.


7.  On 13 October 1970, the applicant signed a statement indicating he waived his reenlistment commitment made at the time of his reenlistment.  He further indicated he realized and fully understood that he would be assigned in accordance with the needs of the Army.

8.  A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 15 July 1971, shows the applicant was absent without leave (AWOL) on or about 31 May 1971 until on or about 8 July 1971 from his unit, the 586th Engineer Company, Fort Benning, GA.

9.  A DA Form 2496 (Disposition Form), dated 18 October 1971, shows the applicant requested separation from active duty on 24 November 1971 due to an unfulfilled reenlistment contract.  The applicant also stated the following:

   a.  "I reenlisted on 27 June 1970 for duty in the Republic of Vietnam.  When I arrived at Fort Lewis, I was diverted and assigned to Fort Benning, GA.  Since that time, I have been unable to get orders to the Republic of Vietnam to fulfill my contract."

   b.  "Since the Army has not fulfilled my reenlistment contract and I will fulfill my original contract of 18 October 1969 on 24 November 1971, I request to be separated on that date."

10.  On 21 October 1971, the separation authority approved the applicant's request and directed separation for an unfulfilled enlistment commitment.

11.  The applicant's DD Form 214 confirms he was honorably discharged on 24 November 1971.  He completed 2 years, 1 month, and 8 days of credible active military service, with 38 days of lost time.

12.  A DD Form 215 (Correction to DD Form 214), dated 12 June 2008, corrected the applicant's middle name to "Wxxxxam."  The applicant's copy of the DD Form 215 is filed in his official military personnel file (OMPF).  

13.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Qualifying service also included temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that the time limit may be waived for personnel participating in actual combat operations.  

14.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

15.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation established standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated the total active duty service outside the continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed would be entered in item 22c of the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), foreign service credit for Vietnam, and correct spelling of his middle name were carefully considered.

2.  Although the applicant contends he served 18 months in the Republic of Vietnam and was exposed to Agent Orange, his records show he requested discharge because he had an unfulfilled enlistment contract due to the fact that he never received assignment orders for Vietnam. 

3.  Further, his record is void of any evidence and he has not provided any showing he was assigned to a unit in the Republic of Vietnam.

4.  A DD Form 215, issued 12 June 2008 by the Army Review Boards Agency, 
St. Louis, administratively corrected the spelling of the applicant's middle name.  However, his copy was never mailed to him.  The applicant’s copy of the          DD Form 215 will be mailed to him along with a copy of these proceedings.

5.  The ABCMR does not grant requests for upgrade of discharge solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

6.  In view of the above, there is no basis to grant the requested relief.

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)                                         AR20120000837



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ABCMR Record of Proceedings (cont)                                         AR20120000837



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