IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080005182 


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, promotion to staff sergeant/E-6 (SSG/E-6), and award of the Silver Star (SS) and Purple Heart (PH).   

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN), he was the senior sergeant/E-5 (SGT/E-5) in a platoon and took it over and was promoted when the platoon sergeant (a SSG/E-6 or sergeant first class/E-7 (SFC/E-7)) was wounded in action.  He also claims to have received wounds to his arms during a night fire fight and as a result should be awarded the PH.  

3.  The applicant provides no documentary evidence 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 was inducted into the Army and entered active duty on 12 April 1968, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 31 (Foreign Service), that he served in the RVN from 12 September 1968 through 
1 September 1969.  Item 33 (Appointments and Reductions) shows that he was promoted to SGT/E-5 on 15 April 1969, and that this was the highest rank he attained while serving on active duty.  Item 40 (Wounds) is blank, and Item 41 (Decorations and Awards) does not include the SS or PH.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 6 October 1969.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that show he was ever recommended for or promoted to a grade above SGT/E-5 during his active duty tenure.  It is also void of any orders or other documents that indicate he was ever recommended for or awarded either the SS or PH, and of any medical treatment documents that indicate he was ever treated for wounds he received as a result of enemy action.   

5.  On 10 April 1970, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 29 days of active military service.  Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) of the separation document (DD Form 214) he was issued upon his REFRAD contains entries confirming he held the rank and pay grade of SGT/E-5 on the date of his separation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal with 3 bronze service stars; Combat Infantryman Badge; RVN Campaign Medal; Army Commendation Medal; Marksman Marksmanship Qualification Badge with Rifle Bar; and Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  The SS and PH are not included in the list of awards contained in Item 26, and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this roster.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), which is a web based index maintained by the Military Awards Branch, United States Army Human Resources Command (HRC) that contains award orders issued during the Vietnam era, was also reviewed.  There were no SS or PH orders pertaining to the applicant on this system.  
7.  Army Regulation 600-200 (Enlisted Personnel Management) contained the Army’s policy for enlisted promotions in effect at the time of the applicant's service.  Chapter 7 contained the Army's enlisted promotion policy.  Paragraph 7-2 provided guidance on promotion authorities and stated, in pertinent part, that the authority to promote to SSG/E-6 rested with field grade commanders of any organization which is authorized a commander in grade of lieutenant colonel or higher, and that the authority to promoted to SFC/E-7 rested with Commanders of organizations authorized a commander in grade of colonel or higher. In most cases, the order of merit for these promotions was established through the use of local promotion selection boards, and promotions had to be authorized by the proper promotion authority.  

8.  Paragraph 7-15 of the same regulation outlined promotion eligibility criteria and stated, in pertinent part, that the time in grade (TIG) and time in service (TIS) requirements for promotion to SSG/E-6 were 10 months TIG as an E-5 and 
5 years TIS; and for SFC/E-7 it was 12 months TIG as an E-6 and 10 years TIS.  The promotion authority was authorized to waive one half of the TIG requirement for both grades, and to waive 2 years of the TIS requirement for SSG/E-6 and 3 years of the TIS requirement for SFC/E-7.  The minimum TIG and TIS requirements with waiver for SSG/E-6 were 5 months TIG and 3 years TIS, and 6 months TIG and 7 years TIS for SFC/E-7.  

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by a medical officer; and a record of this medical treatment must be supported by medical treatment records that were made a matter of official record.  

10.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-10 contains guidance on award of the SS.  It states, in pertinent part, that it is awarded to member's cited for gallantry in action.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.


11.  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 the 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was or should have been promoted to SSG/E-6 or SFC/E-7 because he took over his platoon when his platoon sergeant was wounded in action was carefully considered.  However, the regulation in effect at the time required, at a minimum, with waiver that a member complete 5 months TIG as an E-5 and 3 years TIS to be promoted to SSG/E-6; and a minimum of 6 months TIG and 7 years TIS to be promoted to SFC/E-7.  The evidence of record is void of any indication that the applicant was ever recommended for or promoted to a grade higher than 
SGT/E-5 while serving on active duty, and that he completed less than 2 years of active duty service.  As a result, he failed to meet the regulation TIS requirement for promotion to either SSG/E-6 or SFC/E-7 prior to his separation.  Therefore, there is an insufficient evidentiary basis to support his promotion at this late date. 

2.  The applicant's claim that he was wounded in action and therefore, entitled to the PH was also carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  Item 40 of his DA Form 20 is blank and the PH is not included in the list of awards in Item 41.  The PH is also not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct at the time the separation document was prepared and issued.  There are no PH orders for him on file in the ADCARS, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 


3.  The applicant's contention that he should be awarded the SS was also carefully considered.  However, there is no evidence indicating that he was ever recommended for or awarded the SS by proper authority while serving on active duty, and he has failed to provide sufficient compelling evidence of an act of gallantry that would support award the SS at this late date.  While the available evidence insufficient to support award of the SS, it is noted that the applicant has not yet exhausted all remedies available to him under the law in pursuing award of the SS.  By law, he may pursue his claim to the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 10 USC 1130, which is an option he may still wish to pursue.  

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)                                         AR20080005182



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080005182



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1