PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001057821


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		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)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his retired rank and pay grade be corrected to read specialist four/E-4 (SP4/E-4) and that he receive all back pay and allowances due him as a result of this correction.

3. The applicant states, in effect, that he never received his promotion to
SP4/E4 prior to his disability retirement and he claims that he did not even know about the promotion until January 2001.

4. The applicant’s military records show that on 3 May 1968, he was inducted into the Army for 2 years. He served until being honorably discharged on 12 May 1968 for the purpose of immediate reenlistment for 3 years, which commenced on 13 May 1968. He successfully completed both basic combat training and the 10 week Medical Corpsman Course which resulted in his being awarded military occupational specialty 91B (Medical Corpsman).

5. On 7 March 1969, he was assigned for duty as a medical corpsman in the Republic of Vietnam (RVN) with the 1^st Infantry, 11^th Infantry Brigade, Americal Division. He served in the RVN as a company aidman from 18 April to 17 July 1969. During his tenure of assignment in the RVN, he earned the Combat Medical Badge (CMB); Bronze Star Medal with “V” Device for heroism in connection with ground operations against a hostile force on 14 July 1969; and Army Commendation Medal (ARCOM) for meritorious service in connection with military operations against a hostile force for the period from April to July 1969.

6. On 14 July 1969, the applicant received gunshot wounds to the left hand and to both thighs for which he was awarded the Purple Heart (PH). He was initially medically evacuated from the RVN to the 249^th Surgical Hospital, Japan and ultimately to Valley Forge General Hospital, Phoenixville, Pennsylvania, where he arrived on 28 July 1969.

7. The assignment history outlined in the preceding paragraph is confirmed in a Request for Records and Official Statement of Service (DA Form 261), dated
15 January 1970, issued by the Office of The Adjutant General (OTAG) of the Army. Information contained in item 16 of this document confirms that the applicant was the source of this information and that he attested to its validity with his signature in Item 16.

8. However, the applicant’s Enlisted Qualification Record (DA Form 20) contains an entry in block 38 (record of assignments) that shows he was medically evacuated from the RVN to Ireland Army Hospital, Fort Knox, Kentucky, and that he arrived there as a patient on 2 August 1969. Block 38 also shows that his conduct and efficiency ratings were excellent during his entire period of active duty military service.

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9. In addition, block 8 (appointments and reductions) of the DA Form 20 shows that the applicant was promoted to the rank of specialist four/E-4 (SP4/E-4), effective 15 October 1969. A copy of Special Orders Number 209, the order authorizing this promotion, is on file in the applicant’s Military Personnel Records Jacket (MPRJ). This order was dated 15 October 1969 and was issued by Headquarters, U.S. Army Ireland Army Hospital, Fort Knox, Kentucky.

10. Special Orders Number 26, Headquarters, Department of the Army, Washington D.C., dated 6 February 1970, announced that the applicant had been found unfit for duty by reason of physical disability and they directed that he be placed on the Temporary Disability Retired List (TDRL), effective 13 February 1970, in the rank and pay grade of PFC/E-3.

11. Letter Orders Number D9-533, dated 12 September 1972, issued by OTAG, removed the applicant from the TDRL, effective 30 September 1972. They also placed him on the Retired List, effective 1 October 1972, based on his permanent disability. These orders incorrectly showed that the applicant was placed on the TDRL, effective 6 February 1970, as opposed to the actual date of 13 February 1970.

12. The applicant’s separation document (DD Form 214), effective 13 February 1970, shows that he was retired due to a temporary medical disability, in the rank and pay grade of PFC/E-3, and on the following day placed on the TDRL in that rank and pay grade. This document further shows that he was not available to sign the form and that he was separated without the availability of his records.

13. On 7 February 2001, a correction to the applicant’s DD Form 214 (DD Form 215) was issued that changed his date of retirement to 6 February 1970, which also resulted in a change to the periods of service listed in the original DD Form 214. There is no evidence of record to support these changes other than Letter Orders Number D9-533, which is discussed in paragraph 11 above. Also, the DD Form 215 added the following entry in item 30 (remarks): “Temporary Promotion to SP4 15 October 1969-6 February 1970//NOTHING FOLLOWS.”

14. Army Regulation 600-200, in effect at the time, provided the policy and procedure for the management of enlisted personnel. Chapter 7 contained the Army enlisted promotion policy. Paragraph 7-12 contained guidance on the promotion of personnel missing, captured, or detained; hospitalized as a result of hostile action or service-incurred disease or injury in a hostile area. It stated, in pertinent part, that enlisted personnel otherwise eligible for promotion under this chapter will not be deprived of promotion consideration if they were medically evacuated as a result of hostile action and reportable as a casualty.

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15. Paragraph 7-12 further stated that for promotion under this paragraph, MOS restrictions, position vacancy, and promotion quotas did not apply. Paragraph
7-12b outlined the procedures for promoting members hospitalized. It indicated that if an individual in pay grade E-3 had been recommended for promotion to pay grade E-4 by his immediate commander, the individual could be promoted by the promoting authority prior to being medically evacuated. If the promotion was not accomplished prior to medical evacuation and transfer to a medical facility, the promotion authority was required to forward the award recommendation to the medical facility commander with the individual’s personnel record for consideration by the gaining medical commander.

16. Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal (NDSM) is awarded for honorable active service for any period between 1 January 1961 through 14 August 1974. It also provides for award of the Vietnam Campaign Medal (VCM) with 60 Device to all members who had a period of qualifying service in the RVN during the period 1 March 1961 through 28 March 1973; the RVN Gallantry Cross with Palm Unit Citation Badge for members who served in the RVN during the period 20 July 1965 to
28 March 1973; and the Vietnam Service Medal to all members who were assigned or attached to a unit in the RVN for 1 or more days between 3 July 1965 through 28 March 1973.

17. Army Regulation 600-8-22 also provides, in pertinent part, that the Good Conduct Medal (GCM) is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service. Although there is no automatic entitlement to the GCM, disqualification must be justified. Current practice requires that commanders provide a written notice of unfavorable consideration and permit the individual to respond.

CONCLUSIONS:

1. The evidence of record confirms that the applicant was wounded in action in the RVN on 14 July 1969. He was medically evacuated first to Japan and ultimately to Valley Forge General Hospital, Phoenixville, Pennsylvania, where he arrived on 28 July 1969 and remained assigned until his separation and placement on the TDRL on 13 February 1970.

2. The record also shows that the applicant’s personnel records were forwarded from the RVN to Fort Knox, Kentucky, based on that installation erroneously being identified as his medical evacuation destination. Although he was never physically present at Fort Knox, the hospital commander there promoted him to SP4/E-4, effective 15 October 1969.

3. In accordance with the regulation in effect at the time, enlisted personnel otherwise eligible for promotion would not be deprived of promotion consideration if they were medically evacuated as a result of hostile action and reportable as a casualty. In addition, the gaining hospital commander was authorized to promote these members if they had not been promoted prior to being medically evacuated, were otherwise eligible, and a recommendation from the previous commander was contained in the personnel record.

4. Although the applicant was not actually medically evacuated to Fort Knox, his personnel records were sent there and the hospital commander promoted him to SP4/E-4. A review of the applicant’s record reveals that he met all the regulatory prerequisites for promotion to SP4/E-4, that all his conduct and efficiency ratings were excellent, and that his combat service in the RVN was exceptional, as evidenced by his awards for valor.

5. Given the evidence of record in this case, the Board finds it reasonable to presume that the hospital commander at Fort Knox promoted the applicant in accordance with applicable regulations in effect at the time based on his being fully eligible as determined from a review of his personnel record and that the applicant’s previous commander in the RVN recommended him for promotion based on his outstanding combat service record.

6. Further, in the opinion of the Board, it is very likely that had the applicant’s record been sent to Valley Forge General Hospital, as it should have been, the result would have been the same. He would have been promoted to SP4/E-4 by that hospital commander based on his being fully eligible. Therefore, the Board concludes that it would be appropriate to correct his record to show he was promoted to SP4/E-4 on 15 October 1969.

7. In addition, the Board also finds that it would serve the interest of justice and equity to show the applicant was placed on the TDRL and the Retired List in the rank and pay grade of SP4/E-4 and to provide him all back pay and allowances due as a result.

8. During the review of this case the Board also discovered that the changes made to the applicant’s DD Form 214 via the DD Form 215, dated 7 February 2001, were based on an incorrect date contained in the Letter Order placing him on the Retired List. This error resulted in incorrect service dates being entered in the DD Form 215. Thus, the Board concludes that these service dates should be corrected at this time and that he should be provided any retired pay and allowances due that were lost as a result of these service date errors.

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9. In addition, the evidence of record confirms that the following awards earned by the applicant during his active duty tenure were not included in his DD Form 214: BSM with “V” Device, PH, ARCOM, CMB, and Marksmanship Qualification Badge (Sharpshooter) with rifle bar. In addition, he completed a 10-week Medical Corpsman Course in 1968 that was also omitted from the separation document. The Board concludes that it would be appropriate to add these earned awards and this course completion information to his separation document at this time.

10. Finally, the Board notes that the applicant is entitled to the following awards that he did not receive while on active duty: GCM; NDSM; VSM; VCM with 1960 Device; and the RVN Gallantry Cross with Palm Unit Citation. Therefore, it finds it would be appropriate to correct his record to include these awards at this time.

11. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. showing that the individual concerned was promoted to SP4/E-4 on
15 October 1969;

b. showing he was placed on the TDRL in the rank and pay grade of SP4/E-4 on 13 February 1970;

c. showing he was placed on the Retired List in the rank and pay grade of
SP4/E-4 on 1 October 1972;

d. providing him any back pay and allowances due as a result of his promotion to SP4/E-4 and placement on the TDRL and Retired List in that rank and pay grade.

e. showing in his separation document that he earned the Bronze Star Medal with “V” Device, Purple Heart, Army Commendation Medal, National Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Medical Badge, Marksmanship Qualification Badge (Sharpshooter) with rifle bar, Good Conduct Medal for the period 3 May 1968 to 13 February 1970, and that he completed the 10-week Medical Corpsman Course in 1968;

f. voiding the DD Form 215, dated 7 February 2001, and the changes to the DD Form 214 contained therein and by restoring to him any lost retired pay due as a result of the incorrect service dates listed in the voided DD Form 215;

g. providing him any back pay and allowances due as a result of the correction to the service dates listed in the voided DD Form 215; and

h. issuing him a new DD Form 214 that reflects these changes.

BOARD VOTE:

___DSJ__ __EJA__ __DPH___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Deborah S. Jacobs__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001057821
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/06
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	129.00
2.	107.00
3.
4.
5.
6.