IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20120003570 


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 served in Vietnam.

2.  The applicant states he applied for benefits at the Department of Veterans Affairs (VA) and learned that his Vietnam service was not recorded on his
DD Form 214.  The VA granted him service-connected benefits and the time he served in the Republic of Vietnam (RVN) is shown in the VA records he provides.

3.  The applicant provides copies of his two DD Forms 214 and VA documents in support of his request.

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 Regular Army (RA) on 25 July 1961 for a period of 3 years.  He was awarded military occupational specialty 711.10 (Clerk Typist).

3.  Three separate military service records (the applicant's DA Form 24 (Service Record); DA Form 20 (Enlisted Qualification Record, 1 November 1954 Edition); and DA Form 20 (Enlisted Qualification Record, 1 January 1965 Edition)) repeatedly show:

   a.  his service outside the Continental United States (CONUS), as follows:
   
* departed CONUS - 13 December 1961
* arrived Hawaii - 13 December 1961
* departed Hawaii - 24 September 1964
* arrived CONUS - 29 September 1964

   b.  his assignments while serving overseas with the 25th Infantry Division, U.S. Army Hawaii (USARHAW), as follows:

* Headquarters and Headquarters Company, 25th Infantry Division, from 15 December 1961 to 13 September 1962
* Headquarters and Headquarters Company, 2nd Battalion, 
35th Infantry, from 14 September 1962 to 14 June 1964
* Company C, 2nd Battalion, 35th Infantry, from 15 June 1964 through 23 September 1964

   c.  he was awarded the:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Carbine Bar

4.  The DD Form 214 shows the applicant entered active duty on 25 July 1961 and he was honorably discharged on 9 December 1962 to reenlist in the RA.

   a.  He had completed 1 year, 4 months, and 15 days of active service.

   b.  Item 24 (Statement of Service), block c (Foreign and/or Sea Service), shows:  "USARHAW" - 11 months and 27 days.

5.  A second DD Form 214 shows the applicant entered active duty this period on
10 December 1962, was honorably released from active duty on 22 November 1965, and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.
   a.  He had completed 2 years, 11 months, and 13 days of active service this period.

   b.  Item 24, block c, shows:  "USARHAW" - 1 year, 9 months, and 20 days.

6.  A Standard Form 180 (Request Pertaining to Military Records), dated
4 November 2011, shows the applicant requested a copy of his military records, including all service information and specific assignments.

   a.  He stated, "I was in a covert operation stationed at Schofield Barracks in Hawaii with the 25th Infantry Division, then volunteered for an operation in Khorat, Thailand.  I have pay stubs to prove (it)."

   b.  In an accompanying undated, self-authored letter the applicant stated (in part), "I was stationed at Schofield Barracks, Hawaii with the 25th Infantry Division. I volunteered for a secret advisory covert operation.  We went by C-124 to Khorat, Thailand, there we ran secret missions into (the) Ho Chi Mien [sic] Trail area.  The problem is my records show I was never there.  I know I was (there)."

7.  A National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated 30 November 2006, responded to the applicant (via his senator) and informed him, "we regret that we are unable to provide the extensive search of morning reports requested."  The applicant was informed that, if a search of morning reports is required, he should provide a specific three-month period of morning reports to be searched.  He was also advised of other research resources that were available to him at the National Archives and Records Administration.

8.  A review of the applicant's military personnel records failed to reveal any evidence that he served overseas in the Republic of Vietnam or in Thailand.

9.  In support of his request the applicant provides the following documents:

   a.  VA memorandum, subject:  Verification of In-Country Vietnam Service, dated 9 June 2010.

    	(1)  The Rating Veterans Service Representative (RVSR) wrote (in part), "Explanation why the submitted information can be verified.  Although none of the veteran's records specifically state he served in the Republic of Vietnam, the September 8, 1964 entry in the veteran's STRs (service treatment records) indicate he was suffering from a fungus on his scalp 'since his return from VN' (Vietnam).  The entry goes on to indicate the veteran was initially treated for his scalp condition in approximately April of 1964, which falls within the time frame during which the veteran claims to have served in Vietnam."

    	(2)  The RVSR concluded, "Applying the reasonable doubt doctrine, and given the fact there is no evidence in the veteran's records to prove he did not serve in Vietnam during the claimed period, in-county Vietnam service is verified."

   b.  VA rating decision, dated 14 June 2010, and memorandum, dated 18 June 2010, show that service-connection was granted (on the basis of presumption) for Diabetes Mellitus Type II associated with herbicide exposure (Agent Orange) with a 20% evaluation, effective 30 December 2004.

   c.  VA rating decision, dated 17 March 2011, and memorandum, dated
23 March 2011, that show (in part) service-connection was granted (on the basis of presumption) for Ischemic Heart Disease - Nehmer with a 60% evaluation, effective 30 December 2005, and a 100% evaluation, effective 22 December 2010, based on the association between exposure to herbicide used in the Republic of Vietnam and the subsequent development of these conditions.

   d.  VA memorandum, dated 28 March 2011, that corrected the estimated retroactive benefit amount based on a United States District Court order in Nehmer v. U.S. Department of Veterans Affairs.

10.  Army Regulation 15-185 (ABCMR) 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 applicant contends that his DD Form 214 should be corrected to show he served in Vietnam because the VA has granted him service-connected benefits for service in the RVN.

2.  Records show the applicant served in Hawaii (USARHAW) from 13 December 1961 through 29 September 1964.

   a.  There is no evidence in the applicant's military personnel records that shows he served in the RVN or Thailand.

   b.  There is no evidence he was authorized a service or campaign medal associated with service in the RVN or Thailand during the Vietnam-era.

3.  The applicant's contentions and the evidence he provides in support of his request were carefully considered.

   a.  The VA memorandum, dated 9 June 2010, shows the RVSR determined the applicant had "in-country Vietnam service" based on an entry in his STR.

    	(1)  He relied upon a notation made on 8 September 1964 (that appears to be based on the applicant's comments to the healthcare provider) indicating that he was initially treated for his scalp condition in "approximately April of 1964" and that it had worsened "since his return from VN."

    	(2)  The RVSR concluded, "Applying the reasonable doubt doctrine, and given the fact there is no evidence in the veteran's records to prove he did not serve in Vietnam during the claimed period (emphasis added), in-county Vietnam service is verified."

    	(3)  As a result, service-connection was granted (on the basis of presumption) for the applicant's conditions associated with herbicide exposure.

    	(4)  However, this evidence is insufficient as a basis to support the applicant's request to correct his records to show he served in the RVN during the period of service under review.
   
   b.  The applicant does not provide copies of his substantiating pay stubs that he previously stated he had in his possession.  In addition, he does not provide any evidence stemming from records researched at the National Archives and Records Administration that show he served in the RVN, Thailand, or any other country in Southeast Asia during the Vietnam-era.  Moreover, the applicant's records show he was serving in Hawaii in April 1964.

4.  The VA's rules provide the veteran with the "reasonable doubt" doctrine."  This Board, on the other hand, is required to presume regularity and there is no evidence of record to support the applicant's claim.

5.  In view of all 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)                                         AR20120003570



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ABCMR Record of Proceedings (cont)                                         AR20120003570



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