IN THE CASE OF:	

		BOARD DATE:	  11December 2008

		DOCKET NUMBER:  AR20080012970 


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, reconsideration of his earlier petition requesting that his record and separation document (DD Form 214) be corrected to show his rank as sergeant (SGT).  He also requests, in effect, that his record be corrected to reflect all awards to which he is entitled.  

2.  The applicant states, in effect, that as a result of being wounded in the Republic of Vietnam (RVN), he was hospitalized in Japan and ultimately transferred to Fort Gordon, Georgia, which resulted in his records not catching up with him prior to his release from active duty (REFRAD).  He claims he was promoted to SGT and received awards which were never documented in his record or on his DD Form 214.  

3.  The applicant provides the following documents in support of his application:  a Congressional Inquiry; Army Board for Correction of Military Records (ABCMR) Record of Proceedings; Acting Sergeant Orders, dated 11 December 1968; DD Form 214; Honorable Discharge Certificate; Purple Heart Certificate; and two third-party statements.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070014451, on 20 February 2008.

2.  During its original review of the case, the Board determined that the highest rank the applicant attained and held while serving on active duty was specialist four (SP4), and that there was no error or injustice related to the rank and pay grade listed on the applicant’s DD Form 214.  

3.  The applicant's record shows he was inducted into the Army of the United States (AUS) and entered active duty on 19 February 1968, and he was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).  

4.  The applicant’s Enlisted Qualification Record (DA 20) shows, in Item 31 (Foreign Service), that he served in the RVN from 23 July 1968 through 2 July 1969.  Item 33 (Appointments and Reductions) shows he was promoted to SP4 on 20 November 1968, and that this is the highest rank he attained while serving on active duty.  Item 38 (Record of Assignment) shows that during his RVN tour, he was assigned to Company A, 27th Engineer Battalion, performing duties in MOS 12B.  Item 38 also shows that he received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments.  

5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM); Purple Heart (PH); 2 Overseas Service Bars; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

6.  The applicant's record contains Company A, 27th Engineer Battalion (Combat), Unit Orders Number 75, dated 11 December 1968, which appointed the applicant an acting sergeant.  The record is void of any orders showing he was ever promoted to SGT by proper authority while serving on active duty. 

7.  On 12 May 1969, the applicant's unit commander recommended the applicant be promoted to SGT.  In his recommendation, he requested waivers of time in grade and time in service requirements, and on 19 May 1969, the applicant appeared before a unit promotion board.  The Board Recommendation Worksheet (DA Form 3357-R) shows the applicant was not recommended for promotion to SGT by this unit promotion board.  

8.  On 18 February 1970, during his separation processing, the applicant completed a Serviceman's Statement Concerning Application for Compensation from the Veterans Administration (DA Form 664).  This document lists the applicant’s rank as SP4, and the applicant authenticated the form with his signature.  


9.  On 18 February 1970, the applicant was honorably REFRAD and transferred to the United States Army Reserve (USAR) Control Group.  Item 5a and Item 5b of the DD Form 214 he was issued at the time confirms he held the rank and pay grade of SP4/E-4.  It also shows he completed a total of 2 years of active military service.  Item 24 (Decorations, Medals Badges, Commendations, Citations and Campaign Ribbons awarded or Authorized) shows he earned the following awards during his tenure on active duty:  NDSM; VSM with 2 bronze service stars; RVNCM with 1960 Device; and PH.  The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

10.  The applicant's record shows that he continued to serve in the USAR until 
1 February 1974, at which time he was honorably discharged.  The USAR orders authorizing his discharge list his rank and pay grade as SP4/E-4.  

11.  The applicant provides a third-party statement from a Soldier who states he served with the applicant in the RVN.  This individual states the applicant was made an acting sergeant and although he had the responsibilities he was not getting the pay he deserved for leading and caring for his men.  However, this did not deter him from performing his duties in a professional and highly skilled manner.

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

13.  Chapter 4 of the awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This normal qualifying period is 3 years; however, for the first award only, upon termination of service on or after 27 June 1950, a period of more than 1 but less than 3 years is a qualifying period.   Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  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 A, 27th Engineer Battalion) was awarded the Meritorious Unit Commendation (MUC) and that participation credit was granted for the Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, and TET 69 Counteroffensive campaigns.  
15.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973. 

16.  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 of the applicant's discharge provided, in pertinent part, that the rank and pay grade held on the date of separation, as taken from the DA Form 20, would be listed in Item 5a and Item 5b of the 
DD Form 214.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to awards not listed in his record or on his DD Form 214 was carefully considered and found to have merit.  The evidence of record confirms that he received "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, his record is void of any derogatory information or a specific 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 19 February 1968 through 18 February 1970, and to add this award to his DD Form 214. 

2.  The available evidence also shows that based on his RVN service and campaign participation, he is entitled to the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 3 bronze
service stars to be worn with his VSM.  Therefore, it would also be appropriate to add these awards to his DD Form 214.  

3.  The applicant's contention that his record should be corrected to show his rank as SGT was carefully considered.  However, there is insufficient evidence to support this claim.  The available evidence confirms he was appointed an acting sergeant on 11 December 1968; however, there is no indication that he was ever actually promoted to the rank of SGT by proper authority while serving on active duty.  To the contrary, it appears that although his unit commander recommended him for promotion, the unit promotion board he appeared before on 19 May 1969, recommended he not be promoted to SGT.  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 awarding him the Army Good Conduct Medal, for his qualifying period of honorable active duty service from 19 February 1968 through 18 February 1970; by showing he is entitled to the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 3 bronze service stars with his Vietnam Service Medal; and by providing him a correction to DD Form 214 that includes these changes.

2.  The Board further found that the evidence presented is insufficient to warrant granting the portion of the requested relief pertaining to promotion to sergeant.  Therefore, the Board determined the overall merits of the case on this matter 
are insufficient as a basis to amend the decision of the ABCMR set forth in 
Docket Number AR20070014451, dated 20 February 2008.  




      _______ _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)                                         AR20080012970



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ABCMR Record of Proceedings (cont)                                         AR20080012970


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