PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002083151


         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:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelly		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 he be reconsidered for promotion to captain/0-3 (CPT/0-3).

3. The applicant states, in effect, that he completed his Regents Bachelor of Arts (RBA) Degree on 9 August 2001. However, due to administrative problems between West Virginia University (WVU) and the West Virginia Army National Guard (ARNG), his transcript was not transferred to Marshall University in time for him to graduate on time. As a result, his graduation date was administratively rolled over to the fall semester. In support of his application, he provides a letter from the RBA Coordinator of Marshall University, a copy of his final transcript from Marshall University, and supporting documents from his chain of command.

4. The applicant’s military records show that at the time of his application to this Board, he was still serving as a member of the West Virginia ARNG. On
26 March 2002, he was notified, in a memorandum from the Chief, Office of Promotions, Reserve Components (RC), US Total Army Personnel Command (PERSCOM), St. Louis, Missouri, that he had been considered and not selected for promotion by the 2001 Department of the Army (DA), RC, CPT, Promotion Selection Board, which had convened on 12 November 2001. This memorandum further indicated that the reason he had not been recommended for promotion was that he had not completed a baccalaureate degree.

5. On 17 April 2002, the Marshall University RBA Coordinator provided a letter to the commander of PERSCOM confirming that the applicant had completed all the class room requirements necessary to receive his RBA degree in August of 2001, and that the late formal conferring of his degree was the result of an error on the part of WVU in not providing a valid transcript to Marshall University until after the August 2001 graduation deadline. This resulted in applicant’s graduation being delayed until the next scheduled graduation window in December 2001, even though he had completed the required course work in time to be graduated in August 2001.

6. On 13 April 2002, the applicant submitted a letter explaining the reason for his non-selection for promotion to his battalion commander. On 14 May 2002, the battalion commander requested that the applicant be reconsidered for promotion by a DA Special Selection Board (SSB).

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7. In his memorandum, the battalion commander stated that due to administrative errors on the part of WVU, the applicant missed the window for graduation in the summer of 2001, although all his course work was complete. He further indicated that Marshall University officials confirmed that the applicant took no courses in the fall semester because his degree requirements were all complete by the end of the summer session. Further, these school officials also verified that the first transcript provided by WVU was in error and the second that included all the applicant’s completed course work was submitted after the summer 2001 graduation deadline. As a result, Marshall University could not administratively graduate the applicant until the next scheduled graduation window at the end of the fall semester in December 2001.

8. On 19 July 2002, The Adjutant General (TAG) of the West Virginia ARNG, submitted a memorandum requesting that the applicant be reconsidered for promotion to CPT by a SSB. He stated that when the applicant’s records went before the 12 November 2001 promotion board, an error between colleges caused his RBA degree to be absent from the packet reviewed. Further a review of the applicant’s file indicated that he was fully deserving of promotion and should not be denied the rank of CPT because his records were not complete. Finally, TAG stated that the discrepancy in the applicant’s record was totally beyond his control as noted by the RBA coordinator at Marshall University.

9. On 4 December 2002, the Chief, Special Actions Section, Office of Promotions, RC, PERSCOM, St. Louis, replied to the promotion reconsideration request. He indicated that the information submitted was reviewed, however, by law, the applicant’s degree had to be awarded prior to the convening date of the promotion board. Therefore, there was no basis for promotion reconsideration by a SSB.

10. On 4 December 2002, the Chief, Special Actions, Office of Promotions, RC, PERSCOM, St. Louis, provided this Board an opinion indicating that the applicant had no basis for consideration by a SSB since his degree was conferred after the date the promotion board convened. Therefore, he finally opined that the application should be denied.

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11 The applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to respond, which he did on 8 February 2003. In his rebuttal, he indicated that all the required course work necessary for him to receive his degree was completed on 9 August 2001, three months prior to the convening date of the promotion board. He also commented that at that time, he was told by WVU officials that his transcript would be completed and sent to Marshall University by 14 August 2001. He further explains that he made repeated attempts to resolve this issue through both Universities and his chain of command. However, in spite of his specific instructions to WVU officials to include his summer II courses, the first transcript provided to Marshall University was in error and did not include these summer II courses. Further, the final correct transcript was provided after the summer 2001 graduation deadline had passed. As a result, although he had completed all the course work requirements necessary to receive his degree and graduate in August 2001, he could not be administratively graduated and his degree could not be formally conferred until the following graduation window, which was after the fall semester in December 2001.

12. The applicant concludes by indicating that he has done everything required to qualify for promotion to CPT. He also states that he did everything in his power to ensure the necessary paperwork was completed prior to the convening date of the promotion board. He states that the failure to meet the education requirement was due to administrative error and was through no fault of his own. He concludes that this administrative failure on the part of school officials should not result in the termination of his service after 23 years of committed and dedicated service on his part. In support of his application, he provides transcripts from Marshall University that confirm that he completed the courses necessary and all graduation requirements in August 2001.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he should be reconsidered for promotion to CPT because he had completed the requirements for his RBA Degree prior to 12 November 2001, the date the 2001 DA, RC, CPT, Promotion Selection Board convened.

2. The evidence of record confirms that the applicant completed the course work requirements necessary to receive a RBA Degree from Marshall University in August 2001, which was in advance of the convening date of the promotion board. However, the formal awarding of this degree was delayed due to an administrative error on the part of WVU, through no fault of the applicant.

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3. The Board does not disagree with the opinion submitted by the Chief, Special Actions, Office of Promotions, RC, PERSCOM, St. Louis, which states that by law and regulation, since the applicant’s degree was conferred after the date the promotion board convened, there was no basis for promotion reconsideration by a SSB. However, the Board concludes that there are significant equity issues that need to be addressed in this case in order to ensure a just outcome.

4. The evidence of record confirms and the Board takes special note of the fact that the applicant did in fact complete the promotion education requirement for promotion to CPT prior to the convening date of the 2001 DA, RC, Promotion Selection Board, as confirmed in a letter from the Marshall University RBA Coordinator. Further, his qualifications for promotion are confirmed by his chain of command up to and including TAG, West Virginia ARNG. Thus, notwithstanding the recommendation of PERSCOM, St. Louis, RC promotion officials, the Board concludes that it would be unjust to deny the applicant promotion reconsideration based on the technicality that his degree was not formally conferred prior to the convening date of the promotion board.

5. It is clear that the applicant was not awarded his degree due to administrative errors on the part of the schools involved and based on a policy that did not allow for his degree to be awarded until after the next semester was completed. A policy over which neither the applicant or his chain of command had any control.

6. In view of the facts of this case, the Board finds that it would be appropriate to correct the applicant’s record to show that he completed the requirements for his RBA Degree prior to the convening date of the 2001 DA, RC, CPT Promotion Selection Board, and to recommend that his corrected record be placed before a SSB for promotion reconsideration to CPT under the criteria used by the 2001 DA, RC, CPT, Promotion Selection Board.

7. The Board also finds it would be appropriate to recommend, if the applicant is selected for promotion to CPT by a SSB, that all references to his non-selection for promotion be expunged from his record. Further, that his promotion effective date and date of rank to CPT be established as the date he would have been promoted if he had been originally selected by the 2001 promotion board, and that he be provided all back pay and allowances due as a result.

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

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned completed the requirements for his Regents Bachelor of Arts Degree prior to the convening date of the 2001 DA, RC, CPT Promotion Selection Board; and by submitting his corrected record to duly constituted SSB for promotion consideration to CPT under the criteria followed by the 2001 DA, RC, CPT, Promotion Selection Board.

2. If selected for promotion by the SSB, the record of the individual concerned should be corrected by expunging all references to his non-selection for promotion, by establishing his CPT promotion effective date and date of rank as if he had been originally selected by the 2001 promotion board, and by providing him all back pay and allowances due as a result.

BOARD VOTE:

PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2003083819


         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:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelly		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 he be awarded the Purple Heart (PH).

3. The applicant states, in effect, that that he was injured on 7 December 1963, while serving in the Republic of Vietnam (RVN). He states that he was treated at a field hospital and released. However, he was never recommended for the PH. He claims that the helicopter he was on was shot down about 15 miles south of Saigon, RVN, on 7 December 1963. He states that he received cuts, abrasions, bruises, and internal injuries for which he was treated and released. In support of his application, he provides extracts from a directory published by the Vietnam Helicopter’s Pilot Association, which includes a summary of the incident in question that occurred on 7 December 1963.

4. The applicant’s military records show that he enlisted in the Army and entered active duty on 31 August 1962. He was trained and served in military occupational specialty (MOS) 13B (Field Artillery Crewmember), and he served in the RVN with Battery A, 1^st Battalion, 8^th Artillery, 25^th Infantry Division, from
12 September through 11 December 1963.

5. The applicant’s Service Record (DA Form 24) contains no entry in Section 8 (Wounds Received Through Enemy Action), which indicates that he was not wounded or injured as a result of enemy action. Section 9 (Medals, Decorations, and Citations) contains a list of awards earned by the applicant during his during his tenure on active duty. This list includes the Armed Forces Expeditionary Medal (AFEM), Air Medal (AM) 5^th Award, and Expert Marksmanship Qualification Badge (Rifle). The PH is not included in this list of awards.

6. The applicant’s Military Personnel Records Jacket (MPRJ) contains a Combat Mission Record (USASGV Form 58), which contains a record of the applicant’s flight missions as a gunner between October and December 1963. The mission listed for 7 December 1963 was a class F mission, which was described as a maintenance recovery mission. The applicant’s service record and MPRJ contain no derogatory information or a specific disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

7. The applicant’s separation document (DD Form 214), which was issued to him on the date of his separation from active duty, 24 August 1965, shows in Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following awards earned by the applicant during his tenure on active duty: AFEM; AM 5^th Award; and Expert Marksmanship Qualification Badge (Rifle). The PH is not included in this list of authorized awards.

8. A review of the Department of the Army (DA) Vietnam Casualty Roster was conducted in connection with the processing of this case. The applicant’s name is not included in this official list of RVN casualties.
9. The applicant provided copies of extracts from a directory published by the Vietnam Helicopter Pilots Association that indicates that he received minor injuries as a result of a helicopter accident on 7 December 1963. This mission is listed in the directory as a combat mission; however, there is no official record confirmation of this mission status. He also provides copies of medical treatment records from the Department of Veterans Affairs (DVA), dated in 1991, which indicate he was treated for ear problems and anxiety related to his RVN service.

10. Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy. Paragraph 2-8 contains guidance on awarding the PH. It states, in pertinent part, that the PH is authorized to members who are wounded in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained in action. The wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record.

11. Chapter 4 prescribes the policy for award of the AGCM and it states that this award is for awarded for a period of exemplary behavior, efficiency, and fidelity in active Federal military service. For the first award only, a period of more than
1 year is considered a qualifying period, if given at the termination of a period of active Federal service. It is the decision of the unit commander to award the AGCM, however, a specific disqualification action must be taken to deny the award.

12. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) provides guidance on determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It states that Department of the Army General Orders (DAGO) 8, 1974, announced award of the RVN Gallantry Cross with Palm Unit Citation to Headquarters, United States Military Assistance Command, RVN, and its subordinate units during the period
8 February 1962 to 28 March 1973.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he was injured in action while serving in the RVN, and therefore he is entitled to the PH. However, it finds insufficient evidence to support this claim.

2. By regulation, in order to support an award of a PH a member must have been wounded or injured in action, must have been treated for this wound or injury by military medical personnel, and this treatment must have been made a matter of official record.

3. In this case, notwithstanding the extracts from the Vietnam Helicopter Pilot Directory and the DVA medical treatment records, there are no medical or other official records confirming that the applicant was ever wounded or injured as a result of enemy action while serving in the RVN. Thus, the Board finds the regulatory burden of proof necessary to support awarding the PH has not been met, and that there is insufficient evidence to support granting the requested relief.

4. The applicant is advised that the veracity of his claim of entitlement to the PH based on his being injured as a result of a helicopter accident while on a flight mission in the RVN is not in question. However, based on the lack of evidence to show that his injuries were the result of enemy action, and given his flight mission record refers to the mission in question as a maintenance recovery mission, the Board finds that the regulatory burden of proof required to award the PH has not been satisfied. Therefore, it concludes that there is insufficient evidence to support awarding him the PH at this time. This action is taken solely on the lack of supporting evidence, in the interest of all those who served in the RVN and who faced similar circumstances.

5. Lacking any derogatory information on file or a specific disqualification from any of the active duty unit commanders for which he served, the Board concludes that the applicant should be awarded the first award of the AGCM for his honorable qualifying service from 31 August 1962 through 24 August 1965.

6. The Board also finds that he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on his service in the RVN. Thus, the Board concludes that it would also be appropriate to add this award to his record at this time.

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

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by awarding the individual concerned the Army Good Conduct Medal for his honorable period of qualifying service from 31 August 1962 through
24 August 1965; by showing that he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation for his service in the RVN; and by providing him a corrected separation document that includes these awards.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__TAP__ __RWA _ __ JAK__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  _ Thomas A. Pagan ._
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083819
SUFFIX
RECON
DATE BOARDED	2003/03/13
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1965/08/24
DISCHARGE AUTHORITY	AR 635-205
DISCHARGE REASON	Overseas Returnee
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2. 46	107.0000
3.
4.
5.
6.

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INDEX

CASE ID	AR2002083151
SUFFIX
RECON
DATE BOARDED	2003/03/13
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.