IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080012968 


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 to Item 3 (Social Security Number), Item 5a (Grade, Rate or Rank), Item 5c (Pay Grade), and Item 24 (Decorations, Medals, Badges, Commendations, citations and Campaign Ribbons Awarded or Authorized) of his 17 June 1971 separation document 
(DD Form 214). 

2.  The applicant states, in effect, that his social security number (SSN) listed on his DD Form 214 is incorrect and that the seventh digit should be the number "9" and not "8" as listed.  He also states that Item 5a and Item 5b should show his rank and pay grade as staff sergeant (SSG)/E-6 and not sergeant (SGT)/E-5 as is listed.  He claims he was promoted while he was in the hospital after being wounded in action in the Republic of Vietnam (RVN).  He further states that Item 24 does not list the Silver Star (SS) 1st Oak Leaf Cluster (2nd Award), Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster (2nd Award) with "V" (Valor) Device, and the Purple Heart (PH) awards he received.  He now requests that his DD Form 214 be corrected to reflect these changes.

3.  The applicant provides the following documents in support of his application:  Bronze Star Medal (BSM) 1st Oak Leaf Cluster Certificate with Citation; BSM with "V" Device Certificate; SS Certificate; Air Medal (AM) Certificate; ARCOM Certificate; ARCOM with "V" Device Certificate; Certificate of Retirement; Headquarters, 1st Cavalry Division (Airmobile) General Orders (GO) Number (#) 1449, GO # 21048, GO # 2367, GO # 1664, GO # 17949, and GO # 805; and Headquarters, 1st Cavalry Division Letter, dated 16 January 1971.

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 he was inducted into the Army of the United States and entered active duty on 14 April 1969, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman	).  

3.  The applicant's Official Military Personnel File (OMPF) contains a Record of Induction (DD Form 47), dated February 1969.  Item 17c (Remarks) of this document lists the applicant's SSN using the number "9" as the seventh digit.  A  National Agency Check Request (DD Form 1584), dated 21 April 1969, on file also lists his SSN using the number "9" as the seventh digit in Item 4 (Social Security Number).  

4.  The applicant's Enlisted Qualification Record (DA Form 20) lists his SSN using the number "9" as the seventh digit in Item 1 (Name and Service Number). Item 31 (Foreign Service) shows he served in the RVN from 2 April 1970 through 5 February 1971.  Item 33 (Appointments and Reductions) shows he was promoted to SGT/E-5 on 2 December 1969, and that this is the highest rank he attained while serving on active duty.  

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his RVN tour, he was assigned to Company H (Ranger), 75th Infantry (Airborne), 1st Cavalry Division, and that he performed duties in MOS 11B as a squad leader and assistant patrol leader.  It also shows that he received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments.  His record is void of any derogatory information or a unit commander disqualification that would have precluded award of the AGCM.  Item 41 (Awards and Decorations) shows he earned the following awards:  SS; ARCOM 1st Oak Leaf Cluster with "V" Device; BSM with "V" Device; Vietnam Service Medal (VSM); RVN Campaign Medal; and Combat Infantryman Badge (CIB). 

6.  The applicant's record contains Headquarters, 1st Cavalry Division (Airmobile) GO # 14179, dated 6 August 1970, which awarded him the ARCOM for his meritorious achievement in connection with military operations in the RVN during the period 27 through 28 April 1970.  It also contains Headquarters, 1st Cavalry Division (Airmobile) GO #10703, dated 21 June 1970, which awarded him the ARCOM with "V" Device for his heroism in connection with military operations against a hostile force in the RVN on 22 May 1970.  

7.  The record also contains Headquarters, 1st Cavalry Division (Airmobile)
GO # 21048, dated 3 December 1970, which awarded the applicant the SS, for his gallantry and exceptionally valorous action while engaged in military operations involving conflict with an armed hostile enemy force in the RVN on
22 November 1970.  It also contains Headquarters, 1st Cavalry Division (Airmobile), GO #2367, dated 4 February 1971, which awarded him the SS 1st Oak Leaf Cluster (2nd Award) for his gallantry and valorous action while engaged in military operations involving conflict with an armed hostile enemy force in the RVN on 8 January 1971.  The record also includes Headquarters, 1st Cavalry Division (Airmobile) GO # 1449, dated 20 January 1971, which awarded him the AM for his meritorious achievement while participating in the aerial flight in the RVN during the period between 12 August 1970 through 15 January 1971.  

8.  Office of the Adjutant General (OTAG) Letter Orders (LO) # D 6-387, dated 
10 June 1971, released the applicant from assignment and duty and placed him on the Temporary Disability Retired List (TDRL).  This document shows the applicant was placed on the Retired List on 18 June 1971, in the retired grade of SSG.  A Data For Retired Pay (AGPZ Form 977), dated 10 June 1971, lists SSG/E6 in Item 2 (Retired Grade), Item 5 (Active Duty Grade and Service Number), Item 7 (Highest Grade Attained), and Item 18 (Retried Pay Grade).  

9.  On 17 June 1971, the applicant was honorably released from active duty (REFRAD) under the provisions of Paragraph 4-24e [2], Army Regulation 635-40, by reason of Disability-Temporary, and was placed on the TDRL.  The DD Form 214 he was issued upon his REFRAD shows he had completed a total of 
2 years, 2 months, and 4 days of active military service.  The SSN listed in Item 3 (Social Security Number) lists the number "8" as the seventh digit, and Item 5a (Grade, Rate or Rank) and 5b (Pay Grade), list his rank and pay grade as SGT/E-5.  

10.  Department of Army (DA) Letter Orders (LO) # D5-1070, dated15 May 1972, amended the applicant's original TDRL orders and amendments to change the applicant's current and retired grade to SGT/E-5 vice SSG/E-6, as was originally listed, and an AGPZ Form 977, dated 15 May 1972, corrected the rank listed in Items 2,5,7 and 18 of his Data for Retired Pay to read SGT/E-5 vice SSG/E-6. 

11.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This search revealed an entry confirming the applicant was wounded in action in the RVN on 6 January 1971.

12.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy. Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  

13.  Chapter 4 of the awards regulation prescribes the policy for award of the Army Good Conduct Medal (AGCM).  It states, in pertinent part, that the AGCM is awarded for honorable active duty service during a qualifying period.  This period is 3 years, except in the case of the first award, in which case a period of more than 1 year is a qualifying period if awarded at the termination of a period of Federal military service.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (Company H, 75th Infantry Regiment) received the Valorous Unit Award and RVN Gallantry Cross with Palm Unit Citation.  It further shows that during this period participation credit was granted for the Vietnam Winter-Spring, Sanctuary Counteroffensive, and the Vietnam Counteroffensive Phase VII campaigns.  

15.  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.  The version of the regulation in effect at the time to the applicant's separation stated, in pertinent part, that the DA Form 20 and official documents filed in the record would be used to confirm entries on the DD Form 214.  The current version of the regulation stipulates that all awards earned throughout military service will be entered on the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SSN listed on his DD Form 214 is incorrect and that the seventh digit should be a "9" vice "8" was carefully considered and found to have merit.  The evidence of record confirms the SSN under which the 
applicant was inducted and served contained the number "9" in the seventh digit, as evidenced by entries on his DD Form 47 and DA Form 20.  Therefore, it would be appropriate to correct the applicant's separation document accordingly. 

2.  The applicant's contention that his record and separation document should reflect his awards of the SS 1st Oak Leaf Cluster (2nd Award), ARCOM 1st Oak Leaf Cluster (2nd Award) with "V" Device, and the PH was carefully considered and found to have merit.  The applicant's record includes orders awarding him the SS for his gallantry and exceptionally valorous action in the RVN on 
22 November 1970, and the SS 1st Oak Leaf Cluster for his gallantry and exceptionally valorous action in the RVN on 8 January 1971.  Therefore, it would be appropriate to add the SS 1st Oak Leaf Cluster (2nd Award) to Item 24 of his DD Form 214.  

3.  The applicant's record also contains orders awarding him the ARCOM for his meritorious achievement during the period 27-28 April 1970, and the ARCOM with "V" Device for his heroism on 22 May 1970.  Therefore, it would be appropriate to add the ARCOM 1st Oak Leaf Cluster (2nd Award) with "V" Device to Item 24 of his separation document. 

4.  The applicant's record also confirms he was wounded in action in the RVN on 6 January 1971, as evidenced by the entry on the Vietnam Casualty Roster.  Thus, it would be appropriate and serve the interest of justice to award him the PH for being wounded in action in the RVN on 6 January 1971, and to add this award to his record and separation document at this time. 

5.  The applicant's record also confirms that he received "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the first award of the AGCM, for his qualifying period of honorable active duty service from 14 April 1969 through 17 June 1971.

6.  The evidence of record further confirms that based on his RVN service and campaign participation, the applicant is also entitled to the Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, and 3 bronze service stars with his VSM.  Thus, these awards should also be added to his record and separation document.  

7.  The applicant's contention that Item 5a and 5b of his DD Form 214 should be corrected to show his grade as SSG/E-6 vice SGT/E-5 was carefully considered. However, the evidence of record confirms SGT/E-5 is the highest grade he attained and held while serving on active duty, as evidence by entries in Item 33 
of his DA Form 20.  Further, although the applicant's original TDRL orders and Data for Retired Pay listed his grade as SSG/E-6, his record contains orders amending the original TDRL orders and an amended Data for Retired Pay, which corrected his current grade and retired grade to SGT/E-5.  Therefore, it appears the applicant was properly placed on the Retired List in the grade of SGT/E-5, which is the highest grade he held on active duty.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

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:

	a.  awarding him the Purple Heart for wounds received in the RVN on 
6 January 1971, and the Army Good Conduct Medal for his qualifying honorable active duty service from 14 April 1969 through 17 June 1971; 

	b.  amending Item 3 of his DD Form 214 by deleting the number 8 in the seventh digit and replacing it with the number "9"; 

	c.  amending Item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry "National Defense Service Medal, 
Silver Star 1st Oak Leaf Cluster (2nd Award), Bronze Star Medal with "V" Device, Army Commendation Medal 1st Oak Leaf Cluster (2nd Award) with "V" Device, 
Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Valorous Unit Award, Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars"; and 
   
   d.  providing him a correction to his separation document that reflects these changes.  
      
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 correcting his grade/rank listed in Items 5a and 5b of his DD Form 214.



      _______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)                                         AR20080012968



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ABCMR Record of Proceedings (cont)                                         AR20080012968


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