IN THE CASE OF:  	  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140015214 


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 his service in Vietnam.

2.  The applicant states his service in Vietnam with the 533rd Engineer is not listed on his DD Form 214.  

3.  The applicant does not provide any evidence. 

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 records show he was inducted into the Army of the United States on 19 March 1963 and he held military occupational specialty 122.10 (Bridge Specialist). 
3.  His DA Form 24 (Service Record) and its replacement, DA Form 20 (Enlisted Qualification Record), are not available for review with this case.  His record of assignments is unknown. 

4.  On 18 April 1965, he was honorably discharged for the purpose of enlisting in the Regular Army.  His DD Form 214 shows he was assigned to the 93rd Engineer Company, Germany, at the time.  

5.  He enlisted in the Regular Army for 6 years on 19 April 1965.  His DD Form 4 (Enlistment Record) shows he enlisted at Kornwestheim, Germany, and he was assigned to 93rd Engineer Company at the time. 

6.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 August 1965 while stationed in Nellingen, Germany. 

7.  On 15 September 1967, at Fort Stewart, GA, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from Headquarters Company, U.S. Army Garrison, Fort Stewart, from 5 to 11 August 1967.  The court sentenced him to hard labor for 3 months and a forfeiture of pay.  

8.  On 29 November 1967, the convening authority ordered the unexecuted portion of the applicant's sentence remitted.  He was still assigned to Headquarters Company, U.S. Army Garrison, Fort Stewart.

9.  On 6 May 1968, he departed his unit (Company B, 51st Engineer Battalion, Fort Campbell, KY) in an AWOL status.

10.  On 25 September 1975, he was ultimately apprehended by civil authorities in Winder, GA and he was returned to military control at Fort McPherson, GA.  On 
1 October 1975, he was transferred and assigned to the U.S. Army Personnel Control Facility, Fort Campbell. 

11.  On 2 October 1975, court-martial charges were preferred against the applicant for one specification of being AWOL from 6 May 1968 to 25 September 1975. 

12.  On 2 October 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.   With his application, he submitted "Defense Counsel Questionnaire and Sworn Statement" wherein he stated he served in Germany for 37 months and Vietnam for 2 months and 9 days. 

13.  On 24 October 1975, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 18 November 1975, he was discharged accordingly.

14.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 2 years, 11 months, and 11 days of active service and he had 2,782 days of lost time.  Item 18f (Foreign and/or Sea Service) of this form does not reflect any service.   

15.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It stated that item 22f shows the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater service was performed, e.g., USAREUR (U.S. Army Europe).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 19 March 1963 to 18 April 1965 (induction period).  He served in Germany during this period of active service.  There is no evidence he served in Vietnam during this period.

2.  The evidence of record also shows he served on active duty from 19 April 1965 to 18 November 1975 (enlistment period).  The available evidence shows he was initially assigned to Fort Stewart, GA, and then to Fort Campbell, KY, where he departed AWOL.  The only document that addresses his Vietnam service is the Defense Counsel Questionnaire and Sworn Statement, filed with his separating packet, wherein he stated "he served in Germany for 37 months and Vietnam for 2 months and 9 days."

3.  Aside from that document, there is no evidence in his service records and the applicant did not provide any substantiating evidence that he served in Vietnam.  In the absence of a permanent change of station or temporary duty (TDY) orders or other official documents, such as TDY settlement vouchers or leave and earnings statements showing receipt of hazardous duty pay, confirming his service in Vietnam and the exact dates of such service, regretfully, there is insufficient evidence upon which to grant the applicant's 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)                                         AR20140015214



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ABCMR Record of Proceedings (cont)                                         AR20140015214



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