IN THE CASE OF: BOARD DATE: 23 July 2023 DOCKET NUMBER: AR20230000177 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was a Prisoner of War (POW) and additional information pertaining to his Veterans Affairs (VA) claim. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * DD Form 214 (Report of Transfer or Discharge) * DA Form 1315 (Reenlistment Data Card) * Entrance Physical Audiometry results page * Commonwealth of Pennsylvania Service Verification Request * VA Form 10-7131 (Exchange f Beneficiary Information and Request for Administrative Review * VA Form 21E-1990 (Veteran's Application for Program of Education or Training) 2 June 1969 * VA Form 21E-1992 (Authorization for Certificate of Eligibility or Disallowance) * VA Form 21E-1990 (Veteran's Application for Program of Education or Training) 12 June 1972 * AGUZ Form 1471 (Disclosure Accounting Record) * VA response letter, dated 19 August 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. In August of 2019, he received a computer disc with his VA file and some of his military records that his daughter requested through the Freedom of Information Act (FOIA). Through this release he received the following: (1) A DD Form 214, stating his could reenlist with no mention of POW and Non- Applicable for VA Claim. (2) A letter from the VA General Counsel, noting a FOIA exemption 6, under Title 5, USC, Section 552(b). (3) A DA Form 1315 with a POW Reenlistment Code. (4) VA Form 21E-1990, showing application for education or training benefits dated 2 June 1969. (5) VA Service Verification Data Request Form (Claims being Reviewed),dated 6 March 1970, from the Commonwealth of Pennsylvania Vietnam Conflict Veteran's Compensation Bureau with the initials FP for Claims Reviewer. It states Vietnam Veterans who lived in the State of Pennsylvania had their disability and compensation claims reviewed at the Commonwealth of Pennsylvania Vietnam Conflict Veteran's Compensation Bureau per the Vietnam Conflict Veterans' Compensation Act of 18 July 1968, Public Law 405, No. 183. (6) VA Form VA 10-7131 (Request for Determination of Claims) box 5, request for information/adjudicative action to verify military service, monetary benefits information, and service connection. (7) A second VA Form 21E-1990, dated 18 January 1972. (8) A VA Form 21E-1990, Certificate of Allowance (Approval) on 11 May 1972 [this form is not of record]. b. Per his records, it is noted that he had an early release from the military but no reason was given such as medical or POW. Due to his age and medical diagnosis of Alzheimer's/Dementia, he does not recall the circumstances of his early release. c. His DD Form 1315 and DD Form 214 should have matching information as to his reenlistment status. This error has negatively impacted his ability to obtain any benefits for over 40 years. Additionally, his DD Form 214 should show that he did file a VA claim beginning June 2, 1969, as the records show. This has negatively impacted his ability to apply for service connection and start date for any ongoing disabilities. He is requesting that his DD Form 214 be corrected to reflect the additional information in his records. d. He has requested access to his entire record; however, Exemption 6 prevents him and his family from obtaining it. No one can answer why the Reenlistment Data Card has him listed as a POW, but his DD Form 214 has him eligible to reenlist; POWs are not eligible for reenlistment due to a myriad of medical and psychological reasons. 3. On the applicant's DD Form 149, he indicates his request is related to post-traumatic stress disorder (PTSD) and other mental health issues. However, he provides no medical documentation in support of this contention. 4. The authority granted by Title 10, USC, Section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, the VA, or any other governmental agency. Therefore, issues related to his VA related documents will not be addressed further. 5. The applicant was inducted into the Army of the United States on 19 June 1967, for 2-years. He completed training with award of military occupational specialty 13B (Field Artillery Crewman) and served in Vietnam from 16 November 1967 through 15 November 1968 and in Germany from 30 December 1968 through 29 May 1969. The highest rank/grade he held was sergeant/E-5. 6. The available record is very limited and does not contain his service medical records. 7. The audiometry examination portion of his entrance examination shows no disqualifying factors or limitations. 8. The applicant was honorably discharged on 30 May 1969, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), with Separation Program Number 411 (Early Separation of Overseas Returnee). His reenlistment code is shown as RE-1. He was awarded or authorized the Army Good Conduct Medal, Vietnam Service Medal, National Defense Service Medal, Vietnam Campaign Medal, Sharpshooter Qualification Badge with Rifle Bar, and the Overseas Service Bar. 9. His DA Form 1315, dated 18 June 1969, shows he was not eligible for reenlistment, and indicates "POW ACB." The available records are void of and the applicant failed to provide documentary evidence showing he was held as a POW. 10. The Board should consider the applicant's statement and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant s contentions, the military record, and regulatory guidance. Although the applicant references that he has PTSD, documentation available for review is insufficient for a determination and the applicant did not provide any on his own behalf. Further, after careful review, other than the acronym reflected on Form DA 1315, the Board found insufficient evidence that the applicant had been a prisoner of war for any period of time. Based on the preponderance of the documentation available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. 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. ? REFERENCES: 1. Title 10, USC, 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 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. 2. Title 10, USC, Section 1201, provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30 percent (%) or greater. 3. Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 4. 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). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence 5. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. Paragraph 1-4 provided that a DD Form 214 will be prepared for personnel at the time of their retirement, discharge, or release from the Active Army. a. Paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. b. Paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 6. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20230000177 1 ARHIS BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1