IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080010261 


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, correction of his records to show he retired in pay grade E-7 and authorization of back pay.  He also requests, in effect, that he be awarded the Aircraft Crew Member Badge.  [The applicant actually requests the Combat Aircrew Insignia; however, the Army has no such insignia or badge.]

2.  The applicant states that when he retired he was number four on the E-7 promotion list.  He also states that he flew 267 combat missions as a door gunner and a crew chief.  He was awarded the Air Medal with 11 Oak Leaf Clusters.  His helicopter was shot down and totally destroyed.  He believes these accomplishments qualify him for the "Combat Air Crew" insignia. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release of Discharge from Active Duty); DD Form 215 (Correction to Form 214); and DA Form 20 (Enlisted Qualification Record) 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 enlisted and entered active duty on 26 December 1962.  He arrived in Vietnam with his engineer unit in December 1966 and reenlisted, on 
9 June 1967, for assignment within Vietnam as a helicopter door gunner.  

3.  On 12 June 1967 he was assigned to the 68th Assault Helicopter Company as a door gunner.  He was awarded the Air Medal by General Order 4047, 
1st Aviation Brigade, dated 26 August 1967.  His military occupational specialty was changed to 67N20, helicopter mechanic and he was reassigned within the 68th Assault Helicopter Company.  He returned to the United States on 
21 December 1967.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 lists the Air Medal and Air Medal "(1-12)."  His final DD Form 214 shows "AM" and AM (11).  The orders for his Air Medals are not contained in his available records.

5.  The applicant was promoted to staff sergeant, pay grade E-6 on 2 July 1974.  He retired on 31 March 1983 with 20 years, 3 months, and 4 days of active duty service 

6.  In item 7 (Remarks) of his DA Form 20 is an entry that reads "PQR Fwd to USAREC dtd 801106 For E-7 Prom Sel Bd."  On the copy he submits for the Board's consideration is the handwritten notation, "My Selection # was 4."  There is no substantiating evidence that the applicant was ever selected for or promoted to pay grade E-7.  

7.  Title 10, United States Code, section 3961 states:

	 (a) The retired grade of a regular commissioned officer of the Army who retires other than for physical disability, and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability, is determined under section 1370 of this title.

      (b) Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.


8.  Neither the Army's current governing awards regulation, Army Regulation 600-8-22, nor the governing regulation for Army awards in Vietnam, U.S. Army Vietnam (USARV) Regulation 672-1 lists a "Combat Air Crew" badge or insignia as an authorized award.  However, the Naval Service has such an award.

9.  Army Regulation 672-5-1, the awards regulation then in effect, provided the guidance for award of the Aircraft Crewman Badge.  This award was later known as Aircraft Crew Member Badge and is now designated the Basic Aviation Badge.

10.  The Army Regulation governing military awards at the time in question provided for temporary and permanent award of the Aircraft Crew Member Badge.  The regulation authorized the commander of any unit with Army aircraft assigned to publish orders allowing qualified members of that command to wear the Aircraft Crew Member Badge.  To be eligible for temporary award of the Aircraft Crew Member Badge an individual had to be on flying status as a crew chief in the case of crew chiefs, electronic sensor system operators, and flight engineers or as a non-crewmember in the case of observers, medical aid men, gunners, aircraft maintenance supervisors, or technical inspectors.  The regulation also required individuals to be qualified based on a Class III physical examination, and to hold a principal duty assignment as a crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector.  These personnel are authorized to wear the badge temporarily until relieved from these duties or they may be authorized permanent wear of the Aircraft Crew Member Badge once they have fulfilled the regulatory requirements for permanent award of the badge.  

11.  For permanent award of the Aircraft Crew Member Badge, an individual must have performed in one of the duties specified above for not less than 12 months (not necessarily consecutive) or must have been school trained for a principal duty specified above.  Personnel who are precluded by incapacitation from further flight duty due to wounds sustained as a result of hostile action or injuries resulting from an aircraft accident for which they are not personally responsible are entitled to permanent wear of the Aircraft Crew Member Badge.  Further, an individual who has participated in at least 15 combat missions under probable exposure to enemy fire while serving in the principal duty of crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector is entitled to permanent award of the Aircraft Crew Member Badge.


12.  The U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) listing of requirements for permanent award of the Aircraft Crew Member Badge simply parallel those of Army Regulation 672-5-1.

13.  The USARV awards regulation provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  

DISCUSSION AND CONCLUSIONS:

1.  As a door gunner and crew chief with an assault helicopter company, with apparently 12 Air Medals to his credit, most of which must have represented at least 25 missions; it is reasonable to presume that the applicant participated in at least 15 combat missions under probable exposure to enemy fire.  He is entitled to permanent award of the Aircraft Crew Member Badge and it should be added to his DD Form 214.

2.  There is no substantiating evidence to show that the applicant retired in pay grade E-7 or that his name was on a pay grade E-7 promotion list at the time he retired.  Furthermore he is barred by Title 10, United States Army Code, Section 3961(b) from promotion to a pay grade higher than his retired grade. 

3.  In view of the foregoing, there is no basis for granting the applicant's request regarding his final pay grade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ____ X___  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 awarding him the Aircraft Crew Member Badge and adding it to his final DD Form 214.

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 changing his record to show that he retired in pay grade E-7. 



      __________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)                                         AR20080010261



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010261



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1