MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 October 1998                  
	DOCKET NUMBER:   AC97-08204

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

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he and all soldiers who served in Vietnam prior to 1963 be awarded retroactive hostile fire pay. 

APPLICANT STATES:  That he and thousands of other soldiers were not paid hostile fire pay for their service in Vietnam.  He goes on to state that it was not until a few months after he returned from Vietnam that the government started paying soldiers hostile fire pay.  He further states that he and others were issued combat patches and ribbons and could be members of service organizations but that they were unjustly excluded from drawing hostile fire pay while others were paid.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted on 5 October 1961.  He successfully completed his training as a military policeman and was transferred to Vietnam on 13 September 1962, where he served until he was returned to Oakland, California on 19 July 1963 for separation.

On 22 July 1963 he was honorably released from active duty on 22 July 1962 and transferred to the USAR Control Group (Annual Training).  He had served 1 year, 9 months, and 18 days of total active service of which 10 months and 8 days were spent in Vietnam.  He was awarded the Armed Forces Expeditionary Medal for his service in Vietnam because the Vietnam Service Medal had not been established at that time.

The hostile fire pay provision was enacted as part of the Uniformed Services Pay Act of 1963, Public Law 88-132, with but one significant change from the Department of Defense proposal.  The change was that hostile fire pay was authorized only as a limited war measure, authority for which was to terminate in time of war declared by Congress.  Congress’s intent in this regard was clear and there were no provisions included in the legislation making it retroactive.  The hostile fire pay rate was raised from $55.00 to $65.00, effective 1 September 1965 by the Act of August 21, 1965, Public Law 89-132.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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 evidence that would satisfy the aforementioned requirement.

2.  During the time the applicant served in Vietnam, legislation had not been approved for the payment of hostile fire pay.  Unfortunately, the legislation was approved after the applicant had departed from Vietnam; however, there were no provisions for retroactive payment.

3.  Accordingly, the Board finds that the applicant had no entitlement to hostile fire pay and there were no provisions at that time for the Department to authorize such a payment.  Consequently, there was no error or injustice on the part of the Department in the applicant’s case.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_EW____  __RWG _  __JS____  DENY APPLICATION

						Loren G. Harrell
						Director