RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 February 2005
      DOCKET NUMBER:  AR20040001008

      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. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that Item 4a (Grade, Rate or Rank)
and
Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons
Awarded or Authorized) of his 31 December 1998 separation document
(DD Form 214) be corrected.

2.  The applicant states, in effect, that Item 4a of the DD Form 214 should
read first sergeant (1SG) and Flight Crewmember Wings (FCMW), now known as
the Aircraft Crewmember Badge (ACB), and Republic of Vietnam Cross of
Gallantry (RVNGC) should be added to the list of awards in Item 13.

3.  The applicant provides the following documents in support of his
application:  DD Form 214, dated 31 December 1998; Retirement Orders; DD
Form 214, dated 29 November 1971; and Newspaper Extract on RVNGC.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 December 1998.  The application submitted in this case
is dated 26 April 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that on 31 December 1998, the applicant
was honorably released from active duty for the purpose of retirement after
completing 25 years and 3 months of active military service.  An Enlisted
Qualification Record (DA Form 20) on file in his Military Personnel Records
Jacket (MPRJ) confirms that he was trained in and awarded military
occupational specialty (MOS) 95B (Military Police).  It further shows that
he served in the Republic of Vietnam (RVN) for 19 months between 9 May 1968
and
13 December 1969.

4.  Item 38 Record of Assignments) of the applicant’s DA Form 20 shows that
during his RVN tour, he served in an aviation company and performed duties
in MOS 67A as a door gunner in an aviation company for just under six
months, from 28 June through 11 December 1969.  Item 41 (Awards and
Decorations) does not include FCMW in the list of awards entered.  The
applicant last audited this form on 17 July 1971.

5.  A DD Form 214 issued to the applicant on 29 November 1971, which covers
the period of his RVN service, shows he had earned the National Defense
Service Medal (NDSM), Army Good Conduct Medal (AGCM), Vietnam Service Medal
(VSM), RVN Vietnam Campaign Medal (RVNCM), Army Commendation Medal (ARCOM),
Air Medal (AM) (10) and FCMW.

6.  The applicant’s Personnel Qualification Record (DA Form 2-1), which he
last reviewed on 28 July 1998, includes the RVNGC with Palm Unit Citation
and FCMW in the list of awards contained in Item 9 (Awards Decorations &
Campaigns).  Item 35 (Record of Assignments) confirms he served in a 1SG
position from 1 June 1988 through 22 January 1991.  It also shows that from

3 March 1991 through the date of his REFRAD for retirement, he was working
in master sergeant (MSG) positions.

7.  On 14 September 1998, Orders Number 257-0900 were issued by
Headquarters, United States Army Signal Center and Fort Gordon, Fort
Gordon, Georgia.  These orders authorized the applicant’s REFRAD for the
purpose of retirement on 31 December 1998 and his placement on the Retired
List the following day, 1 January 1999.  These orders confirm that on the
date of his REFRAD, the applicant held the rank of MSG and that he was
authorized the retired grade and would be placed on the Retired List in the
rank title of 1SG.

8.  The DD Form 214 issued to the applicant on 31 December 1998 listed his
rank as MSG in Item 4a.  It also contained an entry in Item 18 (Remarks)
that indicated the applicant was being placed on the Retired List in the
rank title of 1SG.  The following authorized awards are listed in Item 13
and its continuation in Item 18:  Meritorious Service Medal, AM (10), ARCOM
(6), Army Achievement Medal (AAM) (2), 3 Overseas Service Bars, Meritorious
Unit Commendation (3), AGCM (8), NDSM (2), VSM with 6 bronze service stars,
Noncommissioned Officer Professional Development Ribbon with Numeral 3,
Army Service Ribbon, Overseas Service Ribbon, RVNGC with Palm Unit
Citation, RVN Civil Actions Honor Medal Unit Citation, RVNCM, Expert
Qualification Badge with Rifle, Pistol and Grenade Bars, Driver and
Mechanic Badge with W Bar, and Army Recruiter Gold Badge.

9.  The FCMW/ACB is not included in the list of authorized awards contained
on the applicant’s 31 December 1998 DD Form 214, and the applicant
authenticated this separation document with his signature in Item 21
(Signature of Person Being Separated).

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets policies, standards, and procedures for the orderly
administrative separation of Soldiers.  Chapter 12 sets policies and
procedures for voluntary retirement of enlisted Soldiers because of length
of service.  Paragraph 12-17 provides guidance on grade title on the
Retired List of former 1SGs.  It states that NCOs holding the grade of MSG
at retirement, whose records show successful service as 1SG, will be placed
on the Retired List in the grade title, 1SG.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  Chapter 2 contains item-by-item instructions for completing the DD
Form 214.  It states, in pertinent part, that the entry in Item 4a will be
the rank the member holds on the date of separation.  The instructions for
completing Item 13 state that all awards for all periods that are verified
by the member’s record will be entered in this item.

12.  Army Regulation 600-8-22 (Military Awards) contains the Army policy on
military awards.  Paragraph 8-25 contains the policy for award of the
Aircraft Crewmember Badge.  It states, in effect, that the permanent award
of this badge is authorized to members who were school trained in, or who
performed duties in one of the positions for more than 12 months:  Crew
Chief, Airborne Electronic Sensory System Operator or Supervisor, Flight
Engineer, Observer, Aeromedical Physician Assistant, Medical Aid Person,
Gunner, Aircraft Maintenance Supervisor, or Technical Inspector; and who
are qualified for and hold a principal duty assignment as a Crew Chief,
Flight Engineer, Aircraft Maintenance.  The regulation does allow a
temporary award for wear of the ACB by any commander of an Army unit that
has Army aircraft assigned if the individual is performing in one of the
qualifying duties.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that Item 4a of his 31 December 1998 DD Form 214
should list his rank as 1SG was carefully considered.  However, by
regulation, the rank entry in Item 4a will be the rank held on the date a
member is REFRAD.

2.  The evidence of record confirms the applicant held the rank of MSG on
the date he was REFRAD for the purpose of retirement.  Therefore, there is
no error or injustice related to the MSG rank entered in Item 4a of his DD
Form 214.  The applicant’s retirement grade is properly documented as 1SG
based on his successful service as a 1SG, as evidenced by his retirement
orders and in the Item 18 entry pertaining to this issue on his final DD
Form 214.

3.  Contrary to his assertion, the applicant’s 31 December 1998 DD Form 214
does include the RVNGC with Palm Unit Citation in the list of authorized
awards entered in Item 13.  It is listed in the Item 13 continuation in
Item 18.  Therefore, there is no error or injustice related to the
recording of this award.

4.  In regard to the FCMW, or ACB as it is currently known, there is
insufficient evidence to add it to the list of awards contained on the
applicant’s final DD Form 214.  By regulation, a member must be school
trained in, or have served in a qualifying aviation position for more than
12 months in order to qualify for this award.  The evidence of record
confirms the applicant was not school trained in a qualifying aviation MOS
and that he only served as a door gunner for a little more than five
months.  As a result, the regulatory criteria necessary to support the
permanent award of this badge has not been satisfied in this case.

5.  It is likely the applicant was authorized to wear the FCMW/ACB
temporarily while he was assigned to an aviation unit and performing duties
in a qualifying position and this resulted in the award erroneously being
entered in his record. However, as a result of the Board policy not to
render a decision that results in a less favorable outcome for the
applicant, no action will be taken to remove this award from the
applicant’s 29 November 1971 DD Form 214.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1998.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 December 2001.  However, he failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP_  ___SLP_  ___SAP__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Margaret K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040001008                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/12/31                              |
|DISCHARGE AUTHORITY     |AR 635-200 C12                          |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0000                                |
|2.                      |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]