RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070010982 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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 his records be corrected to show that he was promoted to the rank of sergeant (SGT)/pay grade E-5.  He also requests for the award of the Combat Infantryman Badge (CIB), and the Purple Heart.

2.  The applicant states, in effect, that his records are in error because he passed the promotion board for pay grade E-5.  He states that the person who was clearing him in 1968 would not clear him in pay grade E-5 because he was not wearing the rank of SGT/pay grade E-5 on his uniform.  There were several hundred people behind him; therefore, he was cleared in pay grade E-4.  He also states, in effect, he is entitled to the CIB because he was involved with several offensive phases of the war, and gives examples of hazardous duties he performed.

3.  He further states he should received the Purple Heart because he was clearing the Special Forces Camp (possible in Cambodia) when he cut his leg.  He was sent to base camp with high fever.  He states just because no shots were fired at the time it should not stop him from receiving the Purple Heart.  In addition, he hurt his ears when he was standing next to a howitzer which fired  
30 shells.

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a written statement.

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 military service records show that he was inducted and entered active duty on 9 September 1966.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).

3.  He served a tour with Company B, 20th Engineer Battalion (Combat) in the Republic of Vietnam during the period 8 March 1967 to 28 February 1968.

4.  Item 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form  
214 show the entries "SP4 (T) See 30" and "E-4."

5.  Item 6 (Date of Rank) of his DD Form 214 shows the entry "9 Nov 67."

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars; Republic of Vietnam Campaign Medal, Good Conduct Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  However, it does not show the CIB and Purple Heart.

7.  Item 30 (Remarks) of his DD Form 214 shows the entry "Item 5a:  PFC (P)  
E-3 Appt:  2 Apr 67."

8.  Company B, 20th Engineer Battalion (Combat) Unit Order Number 11 dated  
2 April 1967 shows the applicant was appointed permanently to private first class, E-3.

9.  Headquarters, 20th Engineer Battalion (Combat), Special Orders Number  
296 dated 9 November 1967 shows that the applicant was promoted to specialist four (E-4).  

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the U.S. Army Human Resources Command (formerly known as the Total Army Personnel Command) has advised, in similar cases, that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

11.  There are no medical records in the applicant's official military personnel file to show that he sustained wounds as a result of hostile action or to show that he was treated for wounds sustained as a result of hostile action.

12.  There are no general orders in the available records which show that the applicant was awarded the Purple Heart.

13.  A review of the Republic of Vietnam Casualty Roster does not show the applicant's name listed among those wounded.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

15.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation states, in pertinent part, that you enter the grade in which serving at the time of separation, indicating whether permanent or temporary.   Enter the date of rank shown and if the date of rank is different from the date of appointment, enter the date of appointment in the remarks section of the DD Form 214. 

16.  A review of the applicant's records indicates entitlement to additional awards and decorations not shown in item 24 of his DD Form 214.

17.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that all units assigned in Vietnam from 
8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order Number 8, dated 1974.

18.  Department of the Army Pamphlet 672-3 lists the unit awards received by units serving in Vietnam.  This document shows that the 20th Engineer Battalion, to which the applicant was assigned, was cited for award of the Meritorious Unit Commendation for actions during the period 1 March 1967 to 31 May 1968 by Department of the Army General Orders Number 48, dated 1969.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to pay grade E-5 and awarded the CIB and the Purple Heart.

2.  There is no evidence that the applicant was promoted beyond pay grade E-4. His records show that he was permanently appointed in pay grade E-3 on 2 April 1967 and he was serving as a SP4 (T) before separation.  Therefore, he is not entitled to corrections of his records to show in item 5a of his DD Form 214 pay SGT/pay grade E-5.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data/information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.

4.  In the absence of a showing of material error or injustice, those records should not be changed.

5.  Although, the applicant claims he was involved with several offensive phases against the NVA in an overnight movement and patrol with the Special Forces, he has not submitted any evidence to show he held an Infantryman MOS and that he was personally present and actively engaging or being engaged by the enemy.  Therefore, there is insufficient evidence to correct his records to show award of the CIB.

6.  There is no evidence to verify the applicant was wounded as a result of hostile action by enemy forces.  Therefore, the applicant is not entitled to correction of his records to show the Purple Heart.

7.  Evidence shows the applicant is entitled to the award Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his records to show this foreign unit award.

8.  Orders show that 20th Engineer Battalion, to which the applicant was assigned, was cited for award of the Meritorious Unit Commendation for actions during the period 1 March 1967 to 31 May 1968.  Therefore, he is entitled to correction of his records to show this award.

9.  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

__QAS__  __CLG___  __JRS__  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 show SGT/pay grade E-5 in Item 5a and award of the CIB and Purple Heart.

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 to show Republic of Vietnam Gallantry Cross with Palm Unit Citation and Meritorious Unit Commendation. 




___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY w/note
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.