RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040005951


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathan K. Rost              |     |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 that item 38 (Record of Assignments) of his DA
 Form 20 (Enlisted Qualification Record) and, in effect, item 35 (Record of
Assignments) of his DA Form 2-1 (Personnel Qualification Record) be
corrected to show he served as a Track Commander in the assignments
beginning on         15 November 1967 and 29 December 1968.  He also
requests that his orders for the Purple Heart and Bronze Star Medal be
corrected to show his rank as Sergeant (SGT), E-5.

2.  The applicant states that his secondary military occupational specialty
(MOS) and principle duty at the times in question were 11D40 – Track
Commander and not radar operator.  He states he was wrongly promoted to
Specialist Five (SP5), E-5 rather than to the correct rank of SGT.  His Air
Medal shows his proper rank.

3.  The applicant provides U. S. Total Army Personnel Command Permanent
Order 57-1 dated 26 February 2003; Headquarters, 1st Cavalry Division
(Airmobile) General Orders Number 4677 dated 15 April 1969; Headquarters,
1st Cavalry Division (Airmobile) General Orders Number 4073 dated 3 April
1969; a copy of item 38 of his DA Form 20; and a copy of item 18
(Appointments and Reductions) of his DA Form 2-1.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on    22 March 1977.  The application submitted in this case is dated 17
June 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 was inducted into the Army on 6 August 1965.  He
completed basic combat training and advanced individual training and was
awarded MOS 11B (Light Weapons Infantryman).  On 1 April 1967, he enlisted
in the Regular Army.

4.  The applicant arrived in Vietnam on his second tour on or about 11
November 1967.  Item 38 of his DA Form 20 (and item 35 of his DA Form 2-1)
shows he   was assigned to L Troop, 3d Squadron, 11th Armored Cavalry
Regiment on      15 November 1967 and performed duties as an 11D40 Senior
Radar Operator.  He was reassigned to Company A, 1st Battalion, 12th
Cavalry, 1st Air Cavalry Division on 29 December 1968.  Item 38 of his DA
Form 20 (and item 35 of his DA Form 2-1) shows he performed duties as an
11D40 Senior Radar Operator in this assignment.  His DA Form 20 and DA Form
2-1 also show he had a change of duty on 30 December 1968 and performed
duties as an 11D40 Squad Leader.

5.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20
shows he was promoted to SP5 on 12 February 1968 on Headquarters, 3d
Squadron, 11th Armored Cavalry Regiment Special Orders Number 37.

6.  Orders dated 3 April 1969 awarded the applicant the Bronze Star Medal
and show his rank as SP5.  Orders dated 15 April 1969 awarded him the Air
Medal and show his rank as SGT.

7.  On 2 May 1969, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice.  His rank is shown as SP5 on
the DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ) and on
the related forfeiture orders dated 8 May 1969.

8.  The applicant was promoted to Staff Sergeant, E-6 on 6 June 1969.  He
was reduced to SGT on 7 August 1972.

9.  The applicant signed his DA Form 20 on 14 July 1970 and audited it on
      21 March 1974.  He signed one DA Form 2-1 on 23 September 1974 (this
form did not show any assignments prior to 13 March 1974 in item 35 but did
show the SP5 entry in item 18).  He signed another DA Form 2-1 on 30
September 1975 (which showed all his assignments in item 35 and the SP5
entry in item 18) and audited that form on 20 May 1976.

10.  The applicant was honorably discharged on 22 March 1977.  Around
February 2002 he applied to this Board for award of the Purple Heart.  As a
result of Board action, Purple Heart orders were published on 26 February
2003 for wounds received on 7 August 1968.  Those orders show his rank as
SP5.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the Air Medal orders which show his
rank    as SGT are noted; however, the preponderance of evidence shows he
was promoted to SP5 on 12 February 1968.

2.  The Bronze Star Medal orders show the applicant's rank as SP5, an
Article  15 he received on 2 May 1969 shows his rank as SP5, and he signed
a DA Form 20 on 14 July 1970 and audited it on 21 March 1974 knowing it
showed he was promoted to SP5 on 12 February 1968.  He signed two DA Forms
2-1 and audited the second DA Form 2-1 knowing they showed he was promoted
to SP5 on 12 February 1968.

3.  Absent any evidence to show the SP5 orders were amended, it appears the
applicant was a SP5 from 12 February 1968 until he was promoted to Staff
Sergeant on 6 June 1969.

4.  Regarding the entries on the applicant's DA Form 20 and DA Form 2-1
that show he performed duties as a Senior Radar Operator, the preponderance
of evidence shows that he performed those duties.  Again, he signed a DA
Form  20 on 14 July 1970 and audited it on 21 March 1974 knowing it showed
he performed those duties.  He signed one DA Form 2-1 on 23 September 1974
and another DA Form 2-1 on 30 September 1974, and audited the second DA
Form 2-1 on 20 May 1976, knowing they showed he performed those duties.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration (all contended errors except that of the
incorrect rank on the Purple Heart orders) on 22 March 1977; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 21 March 1980.  However, the applicant did not 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.

6.  The applicant's request to correct his Purple Heart orders was filed in
a timely manner.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __jtm___  __jkr___  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.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005951                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050315                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |AM                                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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