RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070015387 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Marla J. N. Troup

Member

Mr. David R. Gallagher

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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 3 December 1968 as follows:

	a.  Item 5a (Grade, Rate or Rank) to show “sergeant (SGT)” instead of “specialist four (SP4) (Temporary)” and Item 5b (Pay Grade) to show "E-5" instead of E-4; and

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) to show award of the Bronze Star Medal and the Combat Infantryman Badge. 

2.  The applicant states, in effect, that the requested corrections were omitted due to an administrative oversight.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Headquarters and Headquarters Company, 3rd Brigade, 101st Airborne Division (Airmobile), Unit Orders Number 84, dated 6 October 1968, appointing him to a temporary acting sergeant;

	b.  101st Airborne Division Citation, showing the applicant was awarded the Bronze Star Medal. 

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 requests award of the Bronze Star Medal and provides his 101st Airborne Division Certificate as documentation.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Bronze Star orders on file for the applicant.  

3.  Despite the 101st Airborne Division Certificate showing his entitlement to the Bronze Star, without orders showing award of the decoration, a correction cannot be made.  However, the applicant has not exhausted the administrative remedy available to him under the provisions of Section 1130 of Title 10 of the United States Code (10 USC 1130).  He has been notified by separate correspondence regarding submission for award of the Bronze Star Medal under this provision of law.  As a result, his request for award of the Bronze Star Medal will not be discussed further in this Record of Proceedings. 

4.  The applicant's records show that he was inducted into the Army of the United States in the grade of private (PVT)/E-1 on 15 March 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry).  The highest grade he attained during his military service was SP4/E-4 (Temporary).  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 3 December 1968.

5.  The applicant’s records show that he served in the Republic of Vietnam from 5 December 1967 to 4 December 1968.  He was assigned as a Light Vehicle Driver to Headquarters and Headquarters Company, 3rd Brigade, 101st Airborne Division (Airmobile).

6.  Item 24 (Decoration, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Parachutist Badge, the National Defense Service Medal, the Army Commendation Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Aircraft Crewman Badge, and two Overseas Service Bars.  Item 24 does not show award of the Bronze Star Medal or the Combat Infantryman Badge.  



7.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was promoted to private (PVT)/E-2 on 15 July 1967 and to private first class (PFC)/E-3 on 15 November 1967.  Additionally, Item 6 of his DD Form 214 shows his date of rank to SP4/E-4 as 19 March 1968.

8.  There are no Special Orders in the applicant’s records that show he was promoted to SGT/E-5 on a permanent basis.

9.  The applicant provided a copy of Headquarters and Headquarters Company, 3rd Brigade, 101st Airborne Division (Airmobile), Unit Orders Number 84, dated 6 October 1968, that show he was appointed to a temporary grade of “Acting Sergeant (E-5)” in accordance with paragraph 7-10a of Army Regulation 600-200 (Enlisted Personnel Management System). 

10.  Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the criteria for promotion to E-5 were 36 months “Time in Service” and 8 months “Time in Grade” as an E-4.  The waivable criteria for promotion to E-5 were 24 months “Time in Service” and 4 months “Time in Grade.”  It also stated that promotion of enlisted personnel to grade E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.

11.  Paragraph 7-52 of Army Regulation 600-200, in effect at the time, stated that company, troop, battery, and separate detachment commanders could appoint qualified individuals as acting corporals, E-4, and acting sergeants, E-5, to serve in position vacancies existing in their units at their present or higher grade, including those resulting from temporary absences of assigned noncommissioned officers.  For appointments to acting corporals, E-4, and acting sergeant, E-5, the individual being appointed could not be more than one grade lower than the grade to which he/she was being appointed.  Acting noncommissioned officers were not entitled to pay and allowances for such higher grades, and services could not be credited as time in a higher grade for promotion or date-of-rank purposes.  An acting noncommissioned officer's status was terminated at the discretion of the unit commander who made the appointment; or upon assignment of a regularly promoted noncommissioned officer to the position; or when casual groups reach their destination; or upon reassignment to another unit.

12.  The applicant’s records do not contain General Orders awarding him the Combat Infantryman Badge.

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge 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 Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

14.  Review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.

15.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

16.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive Phase III, the TET Counteroffensive, the Vietnam Counteroffensive Phase IV, the Vietnam Counteroffensive Phase V, and the Vietnam Counteroffensive Phase VI campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  This regulation also provides, in pertinent part, that a silver service star is authorized in lieu of five bronze service stars.

17.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 43, dated 1970; the Republic of Vietnam Civil Actions Honors Medal-First Class Unit Citation based on Department of the Army General Orders Number 43, dated 1970; and the Meritorious Unit Commendation, based on Department of the Army General Orders Number 48, dated 1971.



18.  Army Regulation 672-5-1, in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

19.  Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, Washington, Special Orders Number 161, dated 17 June 1967; show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60), on 12 June 1967.

20.  Headquarters Fort Polk, Fort Polk, Louisiana, Special Orders Number 115, dated 5 May 1967; show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) on 21 April 1967.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show his rank and grade as SGT/E-5 and award of the Combat Infantryman Badge. 

2.  With respect to the applicant’s rank and grade, evidence of record shows that the highest rank the applicant attained during his military service was SP4/E-4 (Temporary).  He was simply appointed as an acting sergeant while assigned to his unit and his appointment was terminated with his reassignment from that unit. There are no Special Orders in the available records that show he was promoted to SGT/ E-5 and the applicant did not provide sufficient evidence that shows he was promoted to SGT/E-5. 

3.  With respect to his award of the Combat Infantryman Badge, there is no evidence in the available records to show the applicant served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  

4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate that his permanent rank was SGT/E-5 or his entitlement to award of Combat Infantryman Badge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

5.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal-First Class, and the Meritorious Unit Commendation which are not shown on his records.  Therefore, he is entitled to have his records corrected to show these awards.

6.  Evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in five campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of one silver service star to be affixed to the Vietnam Service Medal.

7.  Evidence of record confirms that the applicant served honorably during the period 15 March 1967 to 3 December 1968.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award.

8.  Special Orders show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) and the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60).  Therefore, he is entitled to correction of his records to show these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__rtd___  __mjnt__  __drg___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 15 March 1967 to   3 December 1968; and

	b.  showing award of the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal-First Class, the Meritorious Unit Commendation, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60), and a silver service star to be affixed to his already-awarded Vietnam Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the applicant's rank and grade of SGT/E-5 and award of the Combat Infantryman Badge. 





							Richard T. Dunbar
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.