BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150012464 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150012464 BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by her husband, a former service member, during his service to our Nation. The applicant and all Americans can be justifiably proud of her husband's service in arms. ___________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. BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150012464 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, the spouse of a deceased former service member (FSM), requests correction of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by adding his service in Thailand and Vietnam. 2. The applicant states, in effect: * the FSM served in both Thailand and Vietnam performing classified duty * because it was classified, this service was omitted from his DD Form 214 for the period ending 11 June 1971 * he was in the 159th Assault Helicopter Company in Phu Bai, Vietnam, and Company F, 58th Infantry Long Range Reconnaissance Patrol (LRRP) in the Savannakhet Province, Thailand (her husband spoke of helicopter duty in Vietnam and long range reconnaissance missions) * because this information is missing, the applicant cannot obtain spousal benefits from the Department of Veterans Affairs (VA) * the FSM died of soft-tissue cancer of the type that is listed on the VA's presumptive list of Agent Orange diseases * the FSM was trained as a military policeman who was assigned to a special unit that could be dispatched and arrive anywhere in the world, as needed 3. The applicant provides: * first 3 pages of the FSM's DA Form 20 (Enlisted Qualification Record) * DD Form 214 for the period ending 11 June 1971 * death certificate * Surgical Pathology Report, dated April 2015 * photocopy of the FSM's Selective Service System Registration Certificate, with the FSM's name, social security number, and unit (159th Assault Helicopter Company, 1st Tactical Assault Group, 101st Airborne, Division, Phu Bai, Vietnam) * a photocopy of a lighter, showing, "Indian" and "F Company, 58th Infantry (Airborne) LRRP" * marria-ge certificate * self-authored statement by the FSM 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 was inducted into the Army of the United States on 20 August 1969. Following initial training, he was awarded military occupational specialty (MOS) 95C (Correctional Specialist). 3. He was honorably released from active duty on 11 June 1971. The reason for separation was to attend school. His DD Form 214 shows he completed 1 year, 9 months, and 22 days of net active creditable service. He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 4. His available service record contains: a. A DA Form 20 with the following entries: * item 19 (Investigations and Clearances) shows an Entrance National Agency Check (ENTNAC) was successfully completed on 25 September 1969 [ENTNAC is no longer conducted; during this period it was a records check of designated Federal agencies performed for inductees and first-term enlistees; it did not include the technical fingerprint search associated with a National Agency Check, and permitted access up to a classification of Secret] * item 31 (Foreign Service) is blank except for an entry in overseas tour type, where it appears to show a "Z" but with no associated explanation * item 38 (Record of Assignments) shows, following the completion of initial training, he was assigned to Fort Polk; there are no entries for Thailand or Vietnam * item 41 (Awards and Decorations) lists no awards or decorations associated with service in Thailand or Vietnam b. His available service record is void of any permanent change of station or temporary duty orders showing the FSM was sent to either Thailand or Vietnam at any point during his military service. 5. A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command, failed to reveal any orders for awards associated with service in Vietnam. 6. The applicant provides: a. A statement, authored by the FSM before his death. He essentially states: * he was drafted on 20 August 1969 and released from active duty on 11 June 1971 * he went through basic combat training at Fort Jackson, SC; his advanced individual training was at Fort Gordon, GA * while in AIT he went from private/E-2 to specialist four (SP4); he graduated in the top 5 percent of his class * he received orders to attend courses in Corrections/Military Law/Care and Confinement of Prisoners of War; he graduated at the top of his class as a SP4 * he was assigned to a military police company at Fort Polk, LA and performed duties as a corrections officer at the stockade * after about a month, he received orders making him a corporal * he was assigned as part of a group within a group called "Dark Cloud" * the Soldiers assigned to "Dark Cloud" received additional training addressing the contingency of a nuclear occurrence; he knew the government structure, like martial law, and they were given specific assignments * while at Fort Polk, he was assigned as an aide/driver/assistant to the commander * the members of "Dark Cloud," as well as those from other special units, were formed into an "alert company;" theoretically, they could have been deployed anywhere in the world within 18 hours * he had a security clearance, and some of the information to which he had access was classified * in March or April 1970, he was sent to Thailand on assignment; he was at a base in the Savannakhet Province where he served as a military policeman, and provided base security * during this period he was unknowingly exposed to Agent Orange, which was being used as a defoliant; the Savannakhet Province was heavily sprayed * he is unsure of the name of the base to which he was assigned, but the name started with a "U" (perhaps Ubon, Udom, or U-Tapao) [there were U.S. military bases at these locations during the Vietnam War, and the VA has affirmed Agent Orange was used at each] * he returned to Fort Polk in late summer 1970 (the period from around March/April 1970 to August 1970 represents 5 to 6 months) * on his return he was promoted to sergeant and worked in a maximum security cellblock guarding prisoners confined 23 hours per day * his duties also included escorting prisoners, flying sentenced prisoners to Fort Leavenworth, KS, and transporting prisoners to and from Fort Bragg, NC * in addition, he worked in the processing unit for the stockade, and was a relief tower guard; while he was in the tower, a prisoner attempted to escape * during the escape, his view was blocked by the tall grass; two days later, he was instructed to meet civilian engineers, and watched as they unloaded sprayers from a truck * thereafter, he and another sergeant were each directed to take three prisoners and have them clear the surrounding fields of vegetation using sprayers filled with dioxin (he recalled seeing drums with orange stickers indicating hazardous material, as well as skull and crossbone markings) * he was not given a protective mask while guarding the prisoners; the prisoners sprayed dioxin daily for about 4 months * engineers set up a large fan device while the dioxin was being sprayed; this was done to better spread the chemicals; the dioxin would blow back into his face and, as a result, he was exposed to excessive amounts of this chemical * in February 2014, he was diagnosed with four soft tissue sarcomas; the pathology report showed the presence of a malignant peripheral nerve sheath tumor; it is a form of cancer associated with the connective tissue surrounding nerves * this type of cancer appears on the VA's list of service-connected cancers, and is a cancer presumptively associated with Agent Orange; he believes his service in the Savannakhet Province, Thailand caused his exposure to Agent Orange * he underwent surgery on 3 April 2014 where a surgeon attempted to remove the sarcoma; as of when he wrote his statement, he had been diagnosed with stage 4 cancer and given 6 to 8 months to live b. Death certificate showing the FSM died on 6 May 2015. REFERENCES: 1. Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures for the completion of the DD Form 214. Item 22c (Foreign and/or Sea Service) was to list all service performed outside the continental United States (CONUS). Effective 2 January 1970, item 30 (Remarks) was required to show the inclusive dates of service in Vietnam. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests correction of the FSM's DD Form 214 to show service in Thailand and Vietnam. She asserts this service was not included because the FSM performed classified duties. a. The FSM's available service record does indicate he had a favorable ENTNAC, and with this, could have had access to sensitive information up to the classification of Secret. b. In his self-authored statement, the FSM indicates he was sent to a base in the Savannakhet Province of Thailand. It is quite possible he was placed on temporary duty orders with duty in Thailand. Unfortunately, his available service record is void of any indication he served anywhere but within CONUS. 3. The Board is not an investigative body and decides cases based on the evidence presented in the available service records as well as any independent evidence submitted with the application. In all cases, the applicant has the burden of proving an error or injustice by a preponderance of the evidence. When there is no evidence to the contrary, the Board must presume what is shown, in this case on the FSM's DD Form 214, is administratively correct. 4. The FSM tragically died from a form a cancer often associated with exposure to Agent Orange. a. From his self-authored statement, it is possible he was exposed to Agent Orange and/or Dioxin at some point during his military service. Regrettably, neither the available service record, nor the evidence submitted by the applicant offers the clear evidence needed to validate his presence in Thailand (where the VA has affirmed the use of Agent Orange) or Vietnam. b. The applicant's sincerity is not in question, rather, the Board must have clear evidence when making a correction to military records. Based on the foregoing, there does not appear to be sufficient evidence to warrant the granting of the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012464 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012464 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2