IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080015141 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as follows:

	a.  show his military occupational specialty (MOS) as 11B (Light Weapons Infantry) instead of 94B (Cook);

	b.  show his rank/grade as sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4; 

	c.  award of the Purple Heart (1st Oak Leaf Cluster); and

	d.  award of the Bronze Star Medal and the Silver Star.

2.  The applicant states that his DD Form 214 does not adequately reflect his service. 

3.  The applicant provides a copy of his DD Form 214, dated 25 February 1968, 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 records show he was inducted into the Army of the United States on 13 April 1966.  He completed basic combat and advanced individual training and was awarded MOS 94B.  He was subsequently advanced to private (PV2)/E-2 on 18 June 1966 and private first class (PFC)/E-3 on 9 October 1966.

3.  The applicant's records also show he served in the Republic of Vietnam from 26 December 1966 to 25 February 1968.  He was assigned as follows:

	a.  from 4 January 1967 to 21 August 1967, he was assigned as a cook to Company D, 58th Infantry; and 

	b.  from 22 August 1967 to 25 February 1968, he was assigned as a cook to the 127th Military Police Company.

4.  On 5 February 1967, Company D, 58th Infantry, published Unit Orders Number 6, announcing the applicant's reduction to PV2 for misconduct.  

5.  On 1 April 1967, the applicant was promoted again to PFC, and on 8 December 1967, he was promoted to the temporary rank/grade of SP4.

6.  The applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 25 February 1968.  There is no indication in the applicant's records that he was promoted beyond the rank/grade of SP4 or that he was trained in, awarded, or held an infantry MOS. 

7.  Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) of the applicant's DD Form 214 show the entries SP4 (T) and E-4.

8.  Item 23a (Specialty Number and Title) of the applicant's DD Form 214 shows the entry "94B2O Cook." 

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s DD Form 214, shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal [with Device (1960)], and two Overseas Service Bars.  Item 24 does not show award of the Purple Heart (1st Oak Leaf Cluster), the Bronze Star Medal, or the Silver Star.

10.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.  Furthermore, the applicant's name is not shown on the Vietnam Casualty Roster.

11.  There is no indication in the applicant's medical records that he was wounded in combat and/or that he was treated for such wounds.  Additionally, Item 39 (Physician Summary) of the applicant's Standard Form 89 (Report of Medical History) shows the entry "Medical history reviewed and determined to be of no clinical significance." 

12.  There are no general orders in his records that show he was awarded any Purple Hearts, the Bronze Star Medal, or the Silver Star.

13.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders for any Purple Heart, Bronze Star Medal, or Silver Star orders on file for the applicant.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

16.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

17.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  This regulation specifies that the
DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  The DD Form 214 is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Items 5a and 5b of the DD Form 214 in effect at the time contained the Soldier's grade and rank at the time of separation and Item 23a showed the Soldier's MOS upon separation, obtained from his or her records.

18.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the advancement/promotion of enlisted personnel to grade E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  Unit orders were issued for advancement/promotions to grade
E-3 and E-4.

19.  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.  With respect to the applicant's rank/grade, the evidence of record shows that the applicant was appointed to SP4 (temporary) on 8 December 1967.  The applicant's record is void of his promotion and/or appointment orders to SGT or Specialist Five (SP5)/E-5.  Furthermore, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows he was promoted or appointed beyond the rank/grade of SP4/E-4.  Therefore, there is insufficient evidence to correct the applicant's rank/grade.


2.  With respect to the applicant's MOS, the evidence of record shows that the applicant was awarded 94B upon completion of his advanced individual training and served in this MOS throughout his military service.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that shows he held an infantry or any other MOS during his military service.  Therefore, there is insufficient evidence to correct the applicant's MOS.

3.  With respect to the applicant's Purple Hearts issue, there are no general orders that show the applicant was awarded any Purple Hearts and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base any awards of the Purple Heart in this case.

4.  With respect to awards of the Bronze Star Medal and the Silver Star, the applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Bronze Star Medal and Silver Star.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to awarding him the Silver Star, or the heroism and meritorious achievement or service that led to awarding him the Bronze Star Medal.

5.  While the available evidence is insufficient for awarding the applicant the Silver Star and the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Silver Star and/or the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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.


															XXX
      ______________________
               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)                                         AR20080015141



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ABCMR Record of Proceedings (cont)                                         AR20080015141



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