RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            27 January 2004 
	DOCKET NUMBER:   AR2003088748

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 27 June 1968 through 19 August 1971 be corrected to reflect the appropriate dates for his service in Vietnam.

2.  The applicant states that item 30 of the subject DD Form 214 contains a typographical error and should read January rather than June.  He states he was already in Vietnam when he reenlisted.

3.  The applicant provides a copy of Special Orders Number 116, dated 25 April 1968, awarding him the Combat Infantryman Badge (First Award). 

4.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments) reflecting his assignments while in the military.

5.  The applicant provides a copy of his DD Form 214 for the period of service ending 19 August 1971.

6.  The applicant provides a copy of his DD Form 214 for the period of service ending 26 June 1968.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 19 August 1971.  The application submitted in this case is dated 21 March 2003.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The evidence of record shows the applicant enlisted in the Regular Army on 17 April 1967 for a period of 3 years.

4.  The evidence of record shows that following completion of all military training, the applicant was assigned to Company C, 5th Battalion, 12th Infantry, 199th Infantry Brigade, Fort Lewis, Washington on 5 January 1968.  

5.  The evidence of record shows the applicant was awarded the Expert Badge (Rifle M-16), at Fort Lewis on 30 January 1968.

6.  The evidence of record shows the applicant's unit completed a permanent change of station (PCS) to Vietnam on or about 5 April 1968.  

7.  The evidence of record shows that on 26 June 1968, while in Vietnam, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 27 June 1968, the applicant reenlisted for a period of 3 years and training in Army Career Group 67 (Aircraft Maintenance).  He was reassigned to the 282nd Aviation Company, 212th Combat Support Aviation Battalion.

8.  Shortly after reporting to the 282nd Aviation Company, the applicant became ill and was admitted to the hospital and assigned to the US Army Vietnam Patient Casual Company.  On 26 July 1968, he was transferred to the 249th General Hospital in Japan.  He was permanently released from assignment in Vietnam on 6 August 1968.

9.  On 30 August 1968, the applicant was reassigned from Japan to Korea.

10..  The evidence of record shows that the applicant served a second tour in Vietnam from 3 October 1970 to 18 August 1971.

11.  The applicant was released from the Army and transferred to the United States Army Reserve on 19 August 1971 after completing 3 years, 1 month, and 23 days of active military service and a total time in service of 4 years, 4 months, and 3 days.  His DD Form 214, item 30, shows his Vietnam service as 27 June 1968 to 6 August 1968 and 3 October 1970 to 18 August 1971.

12.  DA Form 20, item 31 (Foreign Service) shows the applicant served in Vietnam with his unit from 5 April 1968 to 6 August 1968.

13.  DA Form 20, item 31, also shows the applicant completed a second tour of service in Vietnam from 3 October 1970 to 18 August 1971.

14.  DA Form 1569 (Transcript of Military Record), item 16 (Date of Departure from the United States) shows the applicant departed the United States on 5 April 1968.

15.  The applicant's DD Form 214 for the period ending 26 June 1968 credits the applicant with 2 months and 22 days of Foreign Service in item 22c.  This reaffirms the applicant's date of arrival in Vietnam as 5 April 1968 and not 5 January 1968.  (680626 minus 680405 equals 2 months and 22 days of service)

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, or release from active duty service, or control of the Active Army.  It establishes a standardized policy for preparing and distributing the DD Form 214, which 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.  It states that the information placed in items 22c and item 30 is reflective of the total service completed between the inclusive dates of the current tour of duty, i.e., 27 Jun 1968 to 19 August 1971.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in Vietnam from 5 April 1968 to 6 August 1968 and 3 October 1970 to 18 August 1971.

2.  The evidence of record shows the applicant had already served 2 months and 22 days in Vietnam when he was discharged on 26 June 1968 for immediate reenlistment on 27 June 1968.

3.  The evidence of record shows the applicant was credited with Vietnam service from 5 April 1968 to 26 June 1968 on his period of enlistment ending on 26 June 1968.  

4.  The evidence of record shows the applicant was credited with Vietnam service from 27 June 1968 to 6 August 1968 and 3 October 1970 to 18 August 1971 for the period of service ending 19 August 1971.

5.  According to Army Regulation 635-5, the Soldier's DD Form 214 reflects only the period of service for the Soldier's current tour of enlistment.  Therefore, when the applicant reenlisted on 27 June 1968, this reenlistment started another period of service, thereby splitting the applicant's first Vietnam tour of duty between the DD Forms 214 ending 26 June 1968 and 19 August 1971.

6.  Accordingly, the applicant's Vietnam service is correct and appropriately reflected on his DD Form 214 for the period ending 19 August 1971.

7.  While the Board concurs with the applicant that he was already in Vietnam when he reenlisted on 27 June 1968, the evidence of record does not support that the applicant or his unit arrived in Vietnam before 5 April 1968.  Therefore, there is insufficient evidence to change the applicant's first period of Vietnam service to reflect 5 January 1968 through 6 August 1968.

8.  Records show the applicant should have discovered the error or injustice now under consideration on 19 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 August 1974.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__aao___  __le____  __ym____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088748	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.	100.0200	
3.		
4.		
5.		
6.