BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090008315 


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 of his records to show he was given a battlefield commission to the rank of first lieutenant during his combat service in Vietnam.

2.  The applicant states, in effect, he would like his records corrected to show he received a battlefield commission for killing a North Vietnamese ranger, saving the life of a commissioned officer.  He also states, in effect, the next morning he was given a battlefield commission by the commissioned officer whose life he saved.  The commissioned officer replaced his E-4 stripes with first lieutenant bars and awarded him a ranger emblem.  His first lieutenant bars, two Silver Stars, two Bronze Star Medals, the Purple Heart, and the Congressional Medal of Honor were later removed from his records.  He further states, in effect, that he was advised that the general for the 1st Calvary Division was told in 1970 that there was a conspiracy to blame him for being a part of the black market.  He was later advised that Congress was going to restore his first lieutenant rank and awards.

3.  The applicant provides no additional documentation 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 military records show he was inducted into the Army of the United States in pay grade E-1 on 16 April 1969 for 2 years.  He enlisted in the Regular Army in pay grade E-1 on 22 April 1969 for 3 years.  He completed training and was awarded military occupational specialty 92C (Petroleum Laboratory Specialist).  He was advanced to pay grade E-3 on 25 September 1969.

3.  The applicant was discharged on 21 December 1969 for the purpose of immediate reenlistment.  He reenlisted in the Regular Army on 22 December 1969 for 3 years and assignment to Vietnam.  He was promoted to pay grade E-4 on 25 April 1970.  He served in Vietnam from 28 February 1970 to 14 January 1971.

4.  The applicant was honorably discharged on 5 January 1971 for the purpose of immediate reenlistment.  He reenlisted in the Regular Army on 6 January 1971 for 4 years.  He was honorably discharged in pay grade E-4 on 4 December 1974 and transferred to the U.S. Army Reserve Control Group (Reinforcement).

5.  The applicant's DA Form 20 (Enlisted Qualification Record), item 33 (Appointments and Reductions), shows the highest grade he satisfactorily held was pay grade E-4.  There is no evidence in his available records to show that he was recommended for or received a battlefield commission to the rank of first lieutenant while serving in Vietnam.

6.  On 11 April 2006, in response to the applicant's request, the ABCMR denied correction to his records by denying him award of two Silver Stars, two Bronze Star Medals, and the Purple Heart.  The Board advised the applicant that his records did not contain orders or other evidence of record authorizing these decorations to him.  The applicant did not request a battlefield commission at that time, but in his request he stated that he had saved the lives of a major and first sergeant, managing to kill an enemy Solider, and that the next morning he received a Ranger Tab.

7.  The applicant was issued a DD Form 215, dated 8 September 2006, adding to the list of awards shown on his DD Form 214 for the period ending 4 December 1974, the following awards:  the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Valorous Unit Award, and the Meritorious Unit Commendation.

8.  According to the internet website "http://www.battlefieldcommissions.org" during the Vietnam War from 1963 to 1973 the Department of Defense, in an official communication, stated that there were no battlefield commissions awarded by the Army during the Vietnam conflict.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his records to show he was awarded a battlefield commission to the rank of first lieutenant.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Department of Defense has stated that no Soldiers were given battlefield commissions by the Army during the Vietnam conflict.  The applicant has provided no proof that he was, in fact, given a battlefield commission to the rank of first lieutenant and there is no evidence in his records to support his contention.  The evidence of record shows the applicant attained pay grade E-4 while serving in Vietnam and this was the highest rank and pay grade he satisfactorily held during his military service.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090008315



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ABCMR Record of Proceedings (cont)                                         AR20090008315



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