RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070001272 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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 the rank, pay grade, and effective date of pay grade shown on his discharge document be corrected.  He also requests award of the Silver Star or Bronze Star Medal.

2.  The applicant states, in effect, that he was among the last in his unit to leave Fort Riley, Kansas, to join the 2nd Battalion, 28th Infantry, 1st Infantry Division in Vietnam.  During this period, none of the rear detachment Soldiers were promoted; however, they were told they would be promoted upon completion of their overseas tour of duty and probably promoted once again upon their return to the United States.  The applicant also states, in effect, that as a private first class (PFC)/pay grade E-3 he held an E-6 position as a heavy weapons forward observer for over 2 years, beginning in July 1964, and was responsible for calling in heavy weapons fire to support his fellow Soldiers; however, he was never promoted after September 1964.  The applicant further states, in effect, when he was a patient in the Philadelphia Naval Hospital, nobody from the Army came to visit him to either promote or decorate him for the wound he received under fire while bringing ammunition to his company commander and radio operator.  The applicant concludes by stating it is his desire to receive the Silver Star or Bronze Star Medal for his actions and be promoted to grade E-6 or at least grade E-5 for when he wears his dress uniform for his son’s wedding this year.

3.  The applicant provides a self-authored statement; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 10 November 1966; DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 30 October 2006; DA Form 1577 (Authorization for Issuance of Awards), dated 14 February 1969; 2 pages of his DA Form 24 (Service Record), covering the period 6 January 1964 to 10 November 1966; Standard Form (SF) 502 (Clinical Record), dated
6 September 1966; and DA Form 8-118 (Medical Board Proceedings), dated
20 September 1966.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 10 November 1966, the date he was medically retired from the Army.  The application submitted in this case is dated 15 January 2007.

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 limitations 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.  Title 10 of the United States Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or upgrading of a decoration) either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

4.  The applicant requests award of the Silver Star or Bronze Star Medal for his actions while under fire.  However, the applicant's military service records are absent orders or any other evidence that confirms his entitlement to either of these awards.  In the absence of authority for the awards, the applicant may request award of the Silver Star and/or Bronze Star Medal under the provisions of 10 USC 1130.  The applicant has been notified by separate correspondence of the procedures for applying for the awards under 10 USC 1130.  As a result, the applicant's request for award of the Silver Star or Bronze Star Medal will not be discussed further in this Record of Proceedings.

5.  The applicant's military service records show that he enlisted in the Regular Army for a period of 3 years on 6 January 1964.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 112.10 (Infantry Indirect Fire Crewman).

6.  The applicant's military service records show that he was assigned to Company C, 2nd Battalion, 28th Infantry, 1st Infantry Division in Vietnam from
6 October 1965 through 25 November 1965.  On 20 November 1965, the applicant sustained a gunshot wound to the thumb on his left hand and was medically evacuated from Vietnam on 25 November 1965.  On 27 November 1965, he was moved from the U.S. Air Force Hospital, Clark Air Force Base, Philippines, in a patient status and medically evacuated to the U.S. Army Element, U.S. Naval Hospital, Philadelphia, Pennsylvania.  He was later reassigned to the Medical Hold Company, Valley Forge General Hospital, Phoenixville, Pennsylvania.
7.  The applicant's military service records contain a copy of a DA Form 8-118 (Medical Board Proceedings), dated 20 September 1966.  This document shows, in pertinent part, that the applicant was determined to be medically unfit for further military service in accordance with the (then) current medical fitness standards based upon loss of his left thumb and he was referred to a Physical Evaluation Board.  Item 2 (Grade) contains the entry, “Pfc.”  Item 36 (Typed Name, Grade and Service Number) shows, in pertinent part, the applicant’s grade as “Pfc” and that he placed his signature on the document verifying the accuracy of the information recorded on the DA Form 8-118.

8.  The applicant's military service records contain a copy of a DA Form 261 (Request for Records and Official Statement of Service from The Adjutant General), dated 23 September 1966.  Item 3 (Current Grade) contains the entry, “PFC E-3.”  Item 11 (Grades Held by EM [Enlisted Man] During Current Period of Active Service) contains the entry, “Pvt E-1, Pvt E-2, PFC E-3” and Item 12 (Highest Grade Held on Active Duty and Date of Promotion) contains the entry, “PFC E-3  8 Sep 64.”  Item 16 (I have Stated My Service to the Best of My Knowledge) of this document shows, in pertinent part, the applicant placed his signature on the document verifying the information recorded on the DA Form 261.  The document was also authenticated by the personnel officer.

9.  The applicant's military service records contain a copy of a DA Form 1041 (Election of Options Under Retired Serviceman’s Family Protection Plan), dated 29 September 1966, submitted by the applicant upon the occasion of his permanent disability retirement processing.  Item 3 (Grade or Rank) of this document contains the entry “PFC E3” and Item 15 (Signature of Applicant) shows, in pertinent part, that the applicant placed his signature on the document verifying the information recorded on the DA Form 1041.  The document was also authenticated by the personal affairs officer.

10.  The applicant's military service records are absent copies of any promotion orders, promotion documents, or other evidence indicating he was recommended for promotion to grade E-4, E-5, or E-6 or that he was ever promoted to the grade of E-4, E-5, or E-6.

11.  The applicant's military service records contain a DA Form 24 (Service Record) covering the period from 6 January 1964 to 10 November 1966.  Section I (Appointments, Promotions, or Reductions) shows, in pertinent part, that he was permanently promoted to the grade of PFC/E-3, effective and with a date of rank of 8 September 1964.  Section 2 (Chronological Record of Military Service) contains, in pertinent part, two line entries showing the applicant’s Duty MOS as 112.60; however, these two line entries are lined-thru indicating they were deleted due to being in error.  This section further shows that the applicant’s Duty MOS while serving in Vietnam was 112.10 (Infantry Indirect Fire Crewman) and, upon redesignation of his primary MOS on 15 July 1965, his Duty MOS became 11C1O (Mortar Forward Observer).

12.  The applicant's military service records contain a DD Form 173 (Joint Message Form), dated 7 November 1966.  This document shows that The Adjutant General, Headquarters, Department of the Army, Washington, DC, notified the Commanding General, Valley Forge General Hospital, Phoenixville, Pennsylvania, that Headquarters, Department of the Army, Special Order 227, Paragraph 271, dated 7 November 1966, directed release of the applicant from active duty on 10 November 1966 and his placement on the permanent disability retired list, in the grade of PFC/E-3, effective 11 November 1966.

13.  The applicant's military service records contain a DD Form 214, with an effective date of 10 November 1966.  Item 3a (Grade, Rate or Rank) of this document contains the entry "PFC E3(P)" and Item 3b (Date of Rank) contains the entry "6 May 64".  The applicant’s DD Form 214 also shows that he was honorably retired from the Army for permanent disability on 10 November 1966 after completing 2 years, 10 months, and 5 days active service.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), Chapter 7 (Promotion and Reduction), in effect during the applicant's service on active duty, prescribed the Army-wide standard promotion policy, procedures, and opportunities for advancement.  This document provides that field grade commanders of any organization which is authorized a commander in grade of lieutenant colonel or higher may promote assigned Soldiers to pay grades E-5 and E-6.  It also provides, in pertinent part, that commanders of medical facilities may promote hospitalized personnel to pay grades E-4 through E-6, if the individual has been recommended for promotion to pay grade E-4 or if the individual is in pay grade E-5 or E-6 with an order of merit recommended list status resulting from selection by a local selection board.  The promotion may not be made earlier than the date the individual completes, without waiver, the normal time in grade and service requirements.

15.  Army Regulation 600-200, paragraph 7-15 (Eligibility and selection criteria), provides the general requirements for promotion to pay grades E-4 through E-7.  This paragraph states, in pertinent part, that for appointment to pay grade E-4 the required time in grade E-3 is 6 months and time in service is 1 year, waivable to 7 months; for appointment to pay grade E-5 the required time in grade E-4 is
8 months and time in service is 21 months, waivable to 15 months; and for appointment to pay grade E-6, the required time in grade E-5 is 10 months and time in service is 5 years, waivable to 3 years.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Service Record, Enlisted Qualification Record, Officer Qualification Record, and orders.

17.  Paragraph 20 (Item 3a – Grade, Rate or Rank) states, in pertinent part, to enter the grade in which the Solider is serving at time of separation, indicating whether permanent (P) or temporary (T).  Pay grades will also be shown.  Paragraph 21 (Item 3b – Date of Rank) states, in pertinent part, to enter the date of rank for the grade shown in Item 3a.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the rank, pay grade, and effective date of the pay grade shown on his discharge document should be corrected because 
he held an E-6 position as a heavy weapons forward observer for over 2 years and was told he would be promoted upon completion of his overseas tour of duty in Vietnam and promoted once again upon return to the United States.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant was promoted to the grade of PFC (E-3), effective and with a date of rank of 8 September 1964.  The evidence of record also shows that he arrived in Vietnam on 6 October 1965 and was medically evacuated from Vietnam on 25 November 1965.  Thus, the applicant did not complete an overseas tour of duty in Vietnam and his military service records do not support his claim that he served in an E-6 position as a heavy weapons forward observer for over 2 years.  In addition, the applicant’s military service records are absent any documentation indicating he was recommended for promotion to pay grade E-4, or that he was placed on an order of merit recommended list resulting from selection by a local selection board for promotion to grade E-5 or E-6.  Further, the applicant’s military service records are absent promotion orders or any other document promoting the applicant to the grade of E-4 (or any higher grade) while he was on active duty.  In this regard, the DA Form 261, dated 23 September 1966 and DA Form 1041, dated 29 September 1966, confirm that the applicant verified his grade was PFC/E-3 at the time of his separation processing.  Moreover, the DA Form 261 that was prepared to document the applicant's service prior to his separation specifically shows the highest grade the applicant held was PFC/E-3 and that his date of promotion was 8 September 1964.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show promotion to grade
E-4, E-5 or E-6.

3.  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 this requirement.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 November 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
9 November 1969.  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.

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JI B __ ___RML_   ___JRH _  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.

3.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show in Item 3b of his DD Form 214 a Date of Rank of 8 September 1964.




       ___John Infante______
          CHAIRPERSON




INDEX

CASE ID
AR20070001272
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19661110
DISCHARGE AUTHORITY
Title 10 USC, Section 1201
DISCHARGE REASON
Retirement – Permanent Disability
BOARD DECISION
DENY WITH NOTE
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
131.0900.0000
2.

3.

4.

5.

6.