RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070009363 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John Heck

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, correction of his records to show his correct rank and all awards and decorations to which he is entitled.

2.  The applicant states, in effect, that he keeps receiving letters inviting him to a reunion addressed as "SGT" (sergeant).  He was informed that he was promoted to E-5 but was medically evacuated and never informed if he was promoted or not.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he was inducted on 1 November 1966.  He successfully completed basic combat training at Fort Bliss, Texas, and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was advanced to E-2 on 1 March 1967.

3.  On 18 May 1967, the applicant was convicted by a special court-martial of being AWOL (absent without leave) from 31 March 1967 to 17 April 1967.  His sentence consisted of confinement at hard labor for 3 months and a forfeiture of pay for 6 months.

4.  On 16 November 1967, the applicant was convicted by a special court-martial of being AWOL from 5 September 1967 to 22 October 1967.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of pay for 6 months.

5.  On 7 February 1968, the applicant was punished under Article 15, UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty. His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty. 

6.  The applicant served in Vietnam from 19 March 1968 to 18 March 1969.  

7.  Item 38 (Record of Assignments), of his DA Form 20 (Enlisted Qualification Record), shows that he was in a patient status on 6 February 1969, at MHD (Medical Holding Detachment), 249th General Hospital, while serving in Vietnam.

8.  The applicant was promoted to SP4/E-4 effective 6 January 1969.  He served until he was released from active duty on 28 March 1969.  He was transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training).   

9.  The applicant's records contain a copy of Headquarters, US Army Field Artillery Center and Fort Sill Special Orders Number 84, dated 25 March 1969.  These orders show his rank as "SGT."  He was discharged from the USAR on 31 October 1972, in the rank of SP4.

10.  There is no evidence in his military personnel records that shows he was recommended for promotion to SGT/E-5 or that he attained promotion list status by a local promotion board, prior to his release from active duty.  

11.  Item 5a, of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows the entry "SP4," item 5b, shows the entry "E-4," and item 6 shows the entry "6 Jan 69" (6 January 1969).

12.  The applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  

13.  The applicant’s records contain a copy of a DD Form 215 (Correction to DD Form 214) which shows he was awarded the Silver Star; the Army Commendation Medal; the Purple Heart; the Vietnam Service Medal, with four bronze service stars, and the Combat Infantryman Badge.





14.  Army Regulation 635-5 provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that item 5a (Grade, Rate or Rank) and 5b (Pay Grade) will be completed to show the active duty grade or rank and pay grade at the time of separation.  It also states that item 6 (Date of Rank) will be completed to show the date of rank of the promotion to the current pay grade from the most recent promotion order or reduction instrument.  

15.  Department of the Army Pamphlet 672-3 shows that the applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, by Department of the Army General Orders (DAGO) Number 8, dated 1974, and the Meritorious Unit Commendation, by DAGO Number 53, dated 1970, while he was assigned to the unit.  These unit awards are not shown on the applicant's DD Form 214. 

16.  Paragraph 7-12, of Army Regulation 600-200, in effect at the time of the applicant's service provided that a commander could promote personnel missing or hospitalized as a result of hostile action. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records, and the applicant has provided none, to show that he was recommended for promotion to sergeant, officially attained promotion list status by a local promotion board, or that he was promoted prior to being medically evacuated or released from active duty.  Therefore, there is an insufficient basis upon which to correct items 5a, 5b, and 6, of his DD Form 214.

2.  The applicant's unit was cited for award of the Republic of Vietnam 
Gallantry Cross, with Palm, Unit Citation, and the Meritorious Unit Commendation, at the time he was a member of the unit.  He is, therefore entitled to correction of his records to show these unit awards.

3.  The applicant alleges that he keeps receiving letters inviting him to a reunion addressing him as "SGT."  However, the only source document available in his records that shows his rank as "SGT" are his separation orders.  It is apparent that the rank could have been an administrative error and was not corrected prior to his release from active duty.  





4.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP _  __JH  ___  __GP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to correct, in effect, item 5a (Grade, Rate, or Rank), of his DD Form 214, to show the entry "SGT," item 5b (Pay Grade) to show the entry "E-5," and item 6 (Date of Rank).

2.  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 by adding the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, and the Meritorious Unit Commendation to his DD Form 214.




______William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070009363
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19690328
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY/GRANT
REVIEW AUTHORITY

ISSUES         1.
107/100
2.

3.

4.

5.

6.