IN THE CASE OF:	

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080004078


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his record be corrected to show his entitlement to the 25th award of the Air Medal (AM) and to show his date of rank (DOR) as 12 December 1969.

2.  The applicant states, in effect, that he is entitled to 25 awards of the AM and that his DOR was 12 December 1969.

3.  The applicant provides his final 31 July 1981 separation document (DD Form 214) in support of his application.

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 that he initially enlisted in the Regular Army and entered active duty on 7 July 1961.  Item 31 (Foreign Service) of his Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) during the following three periods:  17 December 1965-16 December 1966; 25 November 1968-4 November 1969; and 2 March 1972-20 November 1972.

3.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was promoted to platoon sergeant/E-7 (PSG/E-7) on 12 December 1969 and his Official Military Personnel File (OMPF) lateral appointment orders, dated 29 May 1974, show he was laterally appointed from PSG to sergeant first class (SFC) on 15 May 1974. These orders confirm he retained a DOR of 12 December 1969.  His Personnel Qualification Record (DA Form 2), dated 6 April 1981, also contains an entry in Item 10 (Date of Rank) that shows his SFC DOR as 12 December 1969.

4.  The applicant's OMPF also contains 10 AM award orders that awarded the applicant the basic AM through the AM 9th Oak Leaf Cluster (10th Award).  There are no additional AM orders on file in his OMPF.

5.  On 31 July 1981, the applicant was honorably retired in the rank of SFC after completing a total of 20 years and 24 days of active military service.  Item 12h (Effective Date of Pay Grade) of the DD Form 214 he was issued at the time shows his effective date for SFC as 1 January 1970.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  National Defense Service Medal; RVN Campaign Medal; AM 9th Oak Leaf Cluster (10th Award); Bronze Star Medal; Armed Forces Honor Medal; Aircraft Crewman Badge; 5 Overseas Service Bars; Drill Sergeant Badge; Army Commendation Medal 1st Oak Leaf Cluster (2d Award); Vietnam Service Medal with 7 bronze service stars; Army Good Conduct Medal (6th Award); and Meritorious Service Medal.

6.  Army Regulation 600-200, in effect at the time, provided the policy for the management of enlisted personnel.  Chapter 7 contained enlisted promotion policy.  Paragraph 7-14 provided guidance on announcement of promotions to the grades of E-7, E-8 and E-9.  It stated, in pertinent part, that orders announcing promotions to these grades would be published by the Military Personnel Center (MILPERCEN), that dates of rank would be in order of seniority (sequence number as shown on recommended list) over the days of the preceding month, and that the effective date of promotion for pay purposes would be the date of the promotion order unless stated otherwise.  During this period, promotion orders were normally published on the first day of the month.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions.  It states, in pertinent part, that Item 12h will contain the effective date of promotion to the current pay grade as taken from the most recent promotion order (or reduction instrument).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his entitlement to 25 awards of the AM and to show his promotion effective date as 12 December 1969 was carefully considered.  However, there is insufficient evidence to support these claims.  

2.  The evidence of record includes orders awarding the applicant the basic AM through the 9th Oak Leaf Cluster (10th Award); however, there are no additional AM orders or any other documents on file that confirm his entitlement to any additional awards of the AM.  As a result, there is insufficient evidence to support further awards of the AM. 

3.  The regulation in effect at the time of the applicant's promotion provided that, although the DOR would be established based on seniority over the days of the preceding month, the effective date of promotion would be the date the promotion order was published by MILPERCEN, which at the time was normally the first day of the month.  Although the actual promotion order is not on file in the applicant's OMPF, it appears that based on his DOR of 12 December 1969, the effective date of the applicant's promotion was likely 1 January 1970, as is documented in Item 12h of the applicant's final DD Form 214.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to change the entry in Item 12h at this late date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x ____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




 _   _____x__   ______________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004078



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ABCMR Record of Proceedings (cont)                                         AR20080004078



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