RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 3, 2004                  
	DOCKET NUMBER:   AR2003090175

	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	
	Mr. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Curtis L. Greenway		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 he be awarded the medals he earned in Vietnam while he served on a TDY (temporary duty) basis.

2.  The applicant states, in effect, that he served as a musician in Vietnam for three separate TDY tours of 90 days each.  He alleges to have performed with a Saigon, Vietnam Headquarters Company Band, but he does not remember whom he was with.  He states that he was informed that he should have three medals for his service in Vietnam.  The medals are missing from his DD Form 214, Report of Transfer or Discharge, and he wants the medals that recognize and acknowledge his service in Vietnam.

3.  The applicant provides a copy of his DD Forms 214, with effective dates of 30 November 1967 and 9 September 1970, in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error that occurred on 9 September 1970.  The application submitted in this case is dated 3 April 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 applicant enlisted in the Regular Army for 3 years on 25 October 1965.  Following completion of basic combat training at Fort Dix, New Jersey, he was assigned to the US Army Element, School of Music, Norfolk, Virginia.  On completion of advanced individual training he was awarded the primary military occupational specialty 02B, Coronet-Trumpet Player.

4.  The applicant was assigned to the Eighth US Army Band in Korea and arrived there on 24 July 1966.  The applicant remained assigned to this unit until he completed this overseas tour.  He departed Korea on 2 August 1967 en route to the US Army Europe.  On arrival there on 19 September 1967, he was assigned to Headquarters and Headquarters Company, and Band, 3rd Infantry Division, Support Command, in Germany.

5.  On 7 December 1967, the applicant was reassigned to the 49th Army Band in Italy.  The applicant remained in Italy until 8 September 1970 when he was returned to the United States for separation processing.

6.  The applicant was honorably released from active duty on 9 September 1970 in the rank and pay grade of Staff Sergeant, E-6, with a total of 4 years, 10 months and 10 days active Federal military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the following during his service:  the Good Conduct Medal; the National Defense Service Medal; the Armed Forces Expeditionary Medal; and the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar.  The DD Form 214 shows no awards that are typically related to Vietnam service.

7.  A search of all available records was made to determine if the applicant was ordered to serve in Vietnam on a TDY or another basis.  There are no orders to show that he served in Vietnam in 1968 or at any other time.  The applicant provided no orders, TDY or otherwise, to support his contentions.

8.  Item 31 (Foreign Service) of the applicant's DA Form 20, Enlisted Qualification Record, shows no entry documenting any service in Vietnam.  Item 38 (Record of Assignments), of the applicant's DA Form 20, shows no entry to indicate that he was assigned to any overseas location other than Korea, Germany, and Italy.  Item 39 (Campaigns) is void of any entry awarding him campaign participation credit.  Item 41 (Awards and Decorations) does not show any awards that typically accrue to a soldier as a result of his Vietnam service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served overseas in Korea, Germany, and Italy.  There is no evidence, and the applicant provided none, to show that he served in Vietnam on either a TDY or any other basis during his tenure on active duty in the Army.

2.  In the absence of any evidence showing that the applicant served in the Republic of Vietnam, he is ineligible to be awarded any medals or decorations related to Vietnam service.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 September 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 September 1973.  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

rks_____  sac_____  clg_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090175	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  46	107.0000	
2.  119	107.0073	
3.  134	107.0088	
4.		
5.		
6.