IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009521 


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 that he served in the Republic of Vietnam (RVN) and also all of his awards and decorations.

2.  The applicant states he served in Vietnam from January to November 1971. 

3.  The applicant provides a copy of his DD Form 214, three pages of photographs, one page of handwritten notes, and two Department of Veterans Affairs (VA) Forms 21-22 (Appointment of Veterans Service Organization as Claimant's Representative).

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's DA Form 20 (Enlisted Qualification Record) shows he was separated on temporary records prepared by the U.S. Army (USA) Personnel Control Facility (PCF), U.S. Army Armor Center (USAARMC), Fort Knox, KY, on 25 January 1972.

   a.  Item 11 (Enlisted, Inducted, Reenlisted, Extended and/or Ordered to Active Duty) shows he was inducted on 3 August 1970 for a period of 2 years.

   b.  Item 31 (Foreign Service) and item 41 (Awards and Decorations) are blank (no entries).

3.  Headquarters, USA PCF, USAARMC, Fort Knox, KY, Special Orders Number 9, dated 25 January 1972, reassigned the applicant from Headquarters and Headquarters Battery (HHB), 1st Battalion, 39th Artillery, to Special Processing Company, USA PCF, USAARMC, Fort Knox, KY, on 27 December 1971.

4.  On 6 January 1972, the applicant received nonjudicial punishment for being absent from his unit (HHB, 1st Battalion, 39th Artillery), from 7 November to
27 December 1971.

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 15 May 1972 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

   a.  He had completed 1 year, 6 months, and 5 days of net active service.

   b.  He had 98 days lost under Title 10, U.S. Code, section 972, from
7 November through 26 December 1971 and from 10 February through 28 March 1972.

   c.  Item 22 (Statement of Service), block c (Foreign and/or Sea Service), and item 30 (Remarks) do not show any foreign service.

   d.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal.

6.  A review of the applicant's available military personnel records failed to reveal evidence that he was authorized or awarded any other awards or decorations.

7.  The Vietnam casualty listing does not show the applicant's name.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam-era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any award orders pertaining to the applicant.

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

   a.  three pages containing 13 photographs, four with handwritten captions indicating they are photographs of the applicant taken in the RVN in 1971;

   b.  one page of nine handwritten notes addressed to "Bro Rob"; one that indicates it was written in the RVN; and

   c.  two DA Forms 21-22, dated 9 and 11 May 2011, that show the applicant authorized the VA to disclose all of his treatment records to the Disabled American Veterans service organization.

10.  Army records show that during the Vietnam Conflict (from 16 November 1965 to 21 June 1972) the First Field Force Vietnam (IFFV) Artillery served in Vietnam.  The 1st Battalion, 39th Artillery, was organized under the IFFV Artillery.

11.  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 his service in the RVN and all authorized awards and decorations.

2.  The evidence of record shows that HHB, 1st Battalion, 39th Artillery, was organized under the IFFV Artillery during the Vietnam Conflict.  The evidence of record also shows the applicant was assigned to the unit in November 1971.

3.  The sincerity of the applicant's contention that he served in the RVN and the evidence he offers is not in question.  However, the available military records offer insufficient evidence to actually place the applicant in the RVN or for any specific period of time.

4.  There is no evidence of record that shows the applicant was authorized or awarded any awards or decorations other than the National Defense Service Medal.

5.  In view of all of the foregoing, there is an insufficient evidentiary 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)                                         AR20120009521



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ABCMR Record of Proceedings (cont)                                         AR20120009521



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