IN THE CASE OF: BOARD DATE: 12 February 2009 DOCKET NUMBER: AR20080010045 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, in effect, that the records of her deceased husband, a former service member (FSM), be corrected to document his service in the Republic of Vietnam (RVN). 2. The applicant states, in effect, that the FSM spoke often of his RVN service and indicated he served there May through June of 1961. 3. The applicant provides the following documents in support of the application: FSM Death Certificate; Marriage License; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and Enlisted Qualification Record (DA Form 20) Page 1. 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 FSM's record shows he enlisted in the Regular Army (RA) and entered active duty on 26 September 1960, and was trained in and awarded military occupational specialty (MOS) 951.65 (Military Police). 3. Section 4 (Chronological Record of Military Service) of the FSM's Service Record (DA Form 24) shows that subsequent to completion of training at Fort Leonard Wood, Missouri, Fort Gordon, Georgia, and Fort Sam Houston, Texas, the FSM was assigned to the 43 Artillery, Omaha Air Force Station (AFS), Nebraska, where he arrived for duty on 23 April 1961, and where he served through the date of his release from active duty (REFRAD) on 25 September 1963. 4. Section 5 (Service Outside Continental United States) and Section 7 (Combat Service) of the FSM's DA Form 24 are blank, and there are no RVN service medals listed in Section 9 (Medals, Decorations, and Citations). 5. Item 29 (Foreign Service) of the FSM's DA Form 20 is blank and Item 33 (Record of Assignments) confirms that subsequent to completion of his training he was assigned the 43rd Artillery, Omaha AFS, Nebraska, where he served through the date of REFRAD in September 1963. 6. The FSM's Official Military Personnel File (OMPF) contains assignment orders issued at Fort Sam Houston, Texas, on 13 April 1961, which confirm his assignment to the 43 Artillery, Omaha AFS, Nebraska. His OMPF is void of any orders or other documents that show he was ever assigned to or served in the RVN during his active duty tenure. 7. On 25 September 1963, the FSM was honorably REFRAD from the Omana AFS, Nebraska, in the rank of corporal. The DD Form 214 he was issued at the time shows he completed 3 years of active military service. Item 24c (Foreign and/or Sea Service) documents no overseas service and Item 32 (Remarks) contains no entry indicating RVN service. 8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. At the time of the FSM's discharge, the source records for entries in on the DD Form 214, to include Item 24c and Item 32, were the DA Form 24 and DA Form 20 and any orders and documents on file in the record. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that the FSM served in the RVN was carefully considered. However, there is insufficient evidence to support this claim. 2. The applicant's DA Form 24 and DA Form 20 are void of any entries confirming any overseas service and/or service in the RVN. Both records contain entries confirming all of the FSM's active duty service subsequent to training was completed at the Omaha AFS, Nebraska, and his DD Form 214 confirms this is where he was serving at the time of his REFRAD. As a result, absent any evidence of record or independent evidence provided by the applicant that confirms the FSM served in the RVN during his active duty tenure, there is an insufficient evidentiary basis to support granting the requested relief. 3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit any new evidence or argument that would satisfy this requirement. 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) AR20080010045 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080010045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1