BOARD DATE: 13 June 2013
DOCKET NUMBER: AR20120021446
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 his DD Form 214 (Report of Separation from Active Duty) with an effective date of 30 April 1974 be corrected to show he served during the "Vietnam era."
2. The applicant states his DD Form 214 does not show he served during the "Vietnam era."
3. The applicant provides his DD Form 214.
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. On 29 September 1972, he enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. He was initially assigned to the U.S. Army Overseas Replacement Station at Fort Dix, NJ. He went absent without leave (AWOL) on 1 March 1973.
4. On 10 October 1973, he was returned to military control in Hawaii and on
11 February 1974 he was convicted by a special court-martial of being AWOL from 1 March to 14 October 1973. His sentence included confinement at hard labor for 3 months.
5. On 30 April 1974, he was discharged by reason of unsuitability. He completed 9 months and 2 days of net active service that was characterized as under honorable conditions. He had 300 days of time lost. His DD Form 214 contained the following entries:
* Item 9d (Effective Date) - 74 04 30 (30 April 1974)
* Item 15 (Date Entered Active Duty this Period) - 72 09 29 (29 September 1972)
6. Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of a soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement or discharge.
7. Title 38, U.S. Code (USC), section 101 defines the term "Vietnam era" as:
* the period beginning on 28 February 1961 and ending on 7 May 1975 inclusive, in the case of a veteran who served in the Republic of Vietnam during that period
* the period beginning on 5 August 1964 and ending on 7 May 1975 inclusive, in all other cases
DISCUSSION AND CONCLUSIONS:
1. His dates of service, 29 September 1972 to 30 April 1974, fall within the dates defined in Title 38, USC, section 101 as the "Vietnam era." He had 9 months and 29 days of net active service during this period. Therefore, he is considered a "Vietnam era" veteran.
2. However, there was no requirement for an entry on the DD Form 214 identifying those who served during the "Vietnam era." His dates of service are his evidence of having served during this era. Therefore, there is no basis for adding such an entry to his DD Form 214.
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.
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