IN THE CASE OF:	  

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080018476 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect his correct military occupational specialty (MOS) in Item 23a (Specialty Number and Title) and by adding the Bronze Star Medal (BSM) and the Purple Heart (PH) to the list of awards in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

2.  The applicant states, in effect, that he served in MOS 95B (Military Police) as a senior military police officer while serving in the Republic of Vietnam (RVN).  He further states that he was awarded the BSM, which he has in his possession and was told he was awarded the PH at the same time he received the BSM.  He claims he was originally assigned as a heavy equipment operator, but was sent to the RVN as a mechanic in the motor pool.  He claims that in April of 1971, he completed Military Police (MP) training and moved up to a senior MP position.  

3.  In support of his application, the applicant provides the 11 pages of documents identified on the Index of Supporting Evidence for Correction of DD Form 214 he included with his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides a cover letter requesting the application be accepted and offers assistance if there are any questions to be answered.  


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 enlisted in the Regular Army and entered active duty on 16 June 1969.  On 16 August 1969, he successfully completed basic training at Fort Jackson, South Carolina and was reassigned to Fort Lee, Virginia.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in Item 22 (Military Occupational Specialties), that he was awarded primary MOS (PMOS) 62A (Engineer Equipment Assistant) on 2 December 1969, and that he was awarded secondary MOS (SMOS) 63A (Mechanic Maintenance Helper) on
13 October 1970.  It also shows he was awarded PMOS 63B (Wheel Vehicle Mechanic) and SMOS 62B (Engineer Equipment Mechanic) on 18 May 1971.  There is no indication in Item 22 that the applicant was ever formally awarded MOS 95B during his active duty tenure.

4.  The applicant's DA Form 20 shows he served in the RVN from 4 August 1970 through 15 March 1972.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 557th MP Company and that he performed duties in the following MOSs for the periods indicated:  MOS 63A, as a mechanic's helper, from 14 August 1970 through 17 May 1971; MOS 63B, as a wheel vehicle mechanic, from 18 May through 27 August 1971; and MOS 95B, as a senior MP, from 28 August 1971 through 11 March 1972.  

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 with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar.  The BSM and the PH are not included in the list of awards contained in Item 41.


6.  The applicant's record is void of orders or other documents that show he was ever recommended for or awarded the BSM or the PH.  It is also void of any documents or medical treatment records that indicate he was ever wounded in action, or treated for a combat-related wound while serving in the RVN.  His record does contain a DA Form 2166-4 (Enlisted Efficiency Report) covering the period from July 1971 through February 1972.  This form lists the applicant's PMOS as 63B and his SMOS as 62B.  It also shows that his duty MOS (DMOS) was 95B.  The record is void of any documents or orders that confirm he was ever awarded MOS 95B as either a PMOS or SMOS.  

7.  On 17 March 1972, the applicant was honorably released from active duty, in the rank/grade of specialist four (SP4)/E-4, after completing 2 years, 8 months, and 2 days of active military service.  Item 23a of the DD Form 214 he was issued at the time shows he held the PMOS 62B at the time of his separation.  Item 24 shows that during his active duty tenure, he earned the NDSM, VSM with 2 bronze service stars, RVN Campaign Medal with Device (1960), Meritorious Unit Citation, and the Overseas Service Bar.  The BSM and the PH are not included in the list of awards 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.  

8.  The applicant provides a page from orders transferring him to the U.S. Army Reserve (USAR) Control Group (Reinforcement) issued at Oakland, California, on 17 March 1972, which list his MOS as 95B in the standard name line.  He also provides a third-party statement from an individual who remembers working with him as an MP, and photos showing him in the RVN.  He also provides a photo of him holding a BSM.

9.  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 a BSM or a PH pertaining to the applicant.  A review of the Department of the Army (DA) Vietnam Casualty Roster was also conducted; however, there was no entry contained on the roster showing the applicant was wounded in action the RVN.  

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that 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 the wound required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record.  

11.  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 and contains item-by-item instructions for preparing the DD form 214.  The instructions contained in the version of the regulation in effect at the time of the applicant's REFRAD stated, in pertinent part, the DA Form 20 and orders would be used as sources for preparing an enlisted member's DD Form 214.  The instructions for completing Item 23a stated, in pertinent part, to enter the PMOS code number and title for enlisted personnel.  There were no provisions for entering DMOS in Item 23a.  The instructions for Item 24 stated, in pertinent part, to enter from the DA Form 20, all decorations, service medals, campaign credits, and badges awarded or authorized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 23a should be corrected to reflect MOS 95B, and that the BSM and the PH should be included in Item 24 of his DD Form 214, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The governing regulation in effect at the time of the applicant's REFRAD instructed to enter the PMOS code and title in Item 23a of the DD Form 214.  In this case, the applicant's DA Form 20 confirms he was awarded and held the PMOS of 62B at the time of his REFRAD, and that this MOS was properly entered in Item 23a of his DD Form 214.  Although it is clear the applicant served in DMOS 95B during approximately the last six months of his RVN tour, as evidenced by entries in Item 38 of his DA Form 20 and information contained in the third-party statement provided, this factor alone is not sufficient to support a change to Item 23a of his DD Form 214.  There is insufficient evidence of record or independent evidence provided by the applicant that confirms he was ever formally awarded MOS 95B as either a PMOS or SMOS.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

3.  The applicant's record contains no orders awarding him either the BSM or the PH, and neither of these awards is included in the list of earned awards contained in Item 41 of his DA Form 20 or Item 24 of his DD Form 214.  Further, there are no BSM or PH orders for him on file in ADCARS, and his name is not included in the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  


4.  Absent any documentary evidence of record or independent evidence confirming he was awarded the BSM and PH by proper authority while serving on active duty, or that confirms he was ever wounded in action the regulatory burden of proof necessary to support award of the BSM or the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to add these awards to his DD Form 214 at this time.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20080018476



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018476



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1