IN THE CASE OF:	  

		BOARD DATE:	       6 OCTOBER 2009

		DOCKET NUMBER:  AR20090008010 


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) to show the rank of specialist five (SP5)/pay grade E-5 and the Army Commendation Medal.

2.  The applicant states that his commander recommended him for promotion to SP5 and he should have been awarded the Army Commendation Medal.  He adds he just realized that this information was not recorded on his DD Form 214.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and a letter of commendation.

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 was inducted into the U.S. Army and entered active duty for a period of 24 months on 6 August 1969.  Upon completion of training, he was awarded military occupational specialty 91B (Medical Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  Item 31 (Foreign Service) that he served in the Republic of Vietnam (RVN) from 13 January through 3 December 1970;

	b.  Item 33 (Appointments and Reductions) that he was promoted to the rank of specialist four (SP4)/pay grade E-4 with a date of rank of 19 February 1970 under authority of Headquarters and Headquarters Detachment, U.S. Army Medical Command, Vietnam (Provisional), Special Orders Number 66 (1970);

   c.  Item 38 (Record of Assignments) that he was assigned to the
185th Medical Dispensary (RVN) from 16 January to 2 December 1970; and

   d.  Item 41 (Awards and Decorations) that he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Overseas Service Bar, and Good Conduct Medal.

4.  Headquarters, U.S. Army Medical Command, Vietnam (Provisional), Special Orders Number 66, dated 7 March 1970, show the applicant was promoted to the rank of SP4 (E-4) effective 19 February 1970.

5.  The applicant's DD Form 214 shows he entered active duty this period on
6 August 1969, he was honorably released from active duty on 30 August 1971 based upon expiration of term of service, and transferred to the U.S. Army Reserve Control Group (Annual Training).  At the time he had completed 2 years and 25 days of net active service and 10 months and 21 days of foreign service.  Item 5a (Grade, Rate or Rank) shows the entry "SP4"; Item 5b (Pay Grade) shows the entry "E-4"; and Item 6 (Date of Rank) shows the entry "19 Feb 70"
(i.e., 19 February 1970).  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, Good Conduct Medal, Marksman Marksmanship Qualification Badge with (M-14) Rifle Bar, Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar, and Marksman (Second Class) Marksmanship Qualification Badge with Grenade Bar.

6.  There are no orders or other evidence in the applicant's military personnel records that shows he was promoted to the rank of SP5 (E-5).
7.  There are no orders or other evidence in the applicant's military personnel records that shows he was awarded the Army Commendation Medal.

8.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce a copy of any orders showing award of the Army Commendation Medal to the applicant.

9.  In support of his application, the applicant provides a copy of Headquarters, 185th Medical Detachment (RVN), letter of commendation, dated 2 December 1970, issued to him by the commander upon the applicant's departure from the unit.  The commander states, "[i]t is unfortunate that in the transfer from this unit you were not able to appear before a promotion board for SP/5.  I am sure that a promotion for you is well deserved and will be forthcoming at your new duty station.  As you may know, you were recommended for an Army Commendation Medal for your superior service.  I am sure that this will be forwarded to you at your new duty station in the near future."

10.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

11.  Army Regulation 600-8-22, Chapter 3 (U.S. Army Individual Decorations) provides for award of individual military decorations in time of war and peace for heroism and for meritorious achievement or service.  Paragraph 1-14 (Time limitation) provides that, except for the provisions of Title 10, U.S. Code, section 1130, each recommendation for an award or decoration must be entered administratively into military channels within two years of the act, achievement, or service to be honored.  Submission into military channels is defined as "signed by the initiating official and endorsed by a higher official in the chain of command."

12.  Title 10 of the U.S. 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.

13.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.

   a.  The purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

   b.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

       (1)  Paragraph 23 (Item 5a - Grade, Rate or Rank; Item 5b - Pay Grade, and Item 6 - Date of Rank) states, "Self-explanatory."
   
       (2)  Paragraph 53 (Item 24 - Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) states list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he was promoted to the rank of SP5 (E-5) and that he was awarded the Army Commendation Medal.

2.  The letter of commendation provided by the applicant in support of his request was carefully considered.

   a.  The applicant's commander stated it was unfortunate that the applicant was not able to appear before a promotion board for SP5 (E-5), he was sure that a promotion for the applicant was deserved, and that he believed it would be forthcoming at his new duty station.  However, this is insufficient evidence to show the applicant was promoted to the rank of SP5 (E-5).  

       (1)  The applicant was promoted to the rank of SP4 (E-4) on 19 February 1970.
   
       (2)  There is no evidence of record to show he was promoted to the rank of SP5 (E-5).

       (3)  The applicant's DD Form 214 shows he was released from active duty in the rank of SP4 (E-4) with a date of rank of 19 February 1970.  Therefore, records confirm the rank, pay grade, and date of rank shown on the applicant's DD Form 214 are correct and the applicant is not entitled to correction of his records.

   b.  The applicant's commander informed him that he had been recommended for an Army Commendation Medal and that he was sure the award would be forwarded to him at his new duty station.  However, this is insufficient evidence to show the applicant was awarded the Army Commendation Medal.  
   
       (1)  The evidence provided does not show that a recommendation for award was entered administratively into military channels within two years of the service to be honored.  Specifically, there is no evidence a recommendation was submitted into military channels (i.e., signed by the initiating official and endorsed by a higher official in the chain of command).

       (2)  There is no evidence that an award of the Army Commendation Medal was approved and announced in orders.  Therefore, there is insufficient evidence to support the applicant's claim to the Army Commendation Medal.

3.  While the available evidence is insufficient for awarding the applicant the Army Commendation Medal, this in no way affects the applicant's right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to 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.



      _______ _   __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)                                         AR20090008010



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ABCMR Record of Proceedings (cont)                                         AR20090008010



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