IN THE CASE OF:	

		BOARD DATE:	  12 January 2010


		DOCKET NUMBER:  AR20090011455 


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 his award of the Army Commendation Medal with "V" Device be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also requests that his rank shown on his 
DD Form 214 be corrected to read specialist four (SP4)/pay grade E-4.

2.  The applicant states his representative/advisor told him these items on his 
DD Form 214 should be corrected.

3.  The applicant provides, in support of his application, copies of his Standard Form 88 (Report of Medical Examination) and his orders for the award of the Army Commendation Medal with "V" Device.

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 personnel records show he was inducted into the Army of the United States on 14 July 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).

3.  On 30 August 1969, the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 17 November 1969, the applicant was awarded the First Class Badge (now known as the Sharpshooter Marksmanship Qualification Badge) for the M60 machinegun.

5.  On 16 January 1970, the applicant was promoted to private first class (PFC)/pay grade E-3 with an effective date of 10 January 1970.

6.  The applicant was assigned to the 2nd Battalion (Air Mobile), 327th Infantry in the Republic of Vietnam during the period 23 January to 28 November 1970.

7.  On 7 November 1970, the applicant was awarded the Bronze Star Medal for meritorious service in connection with ground operations against a hostile force.  The orders for this award identified him as a PFC.

8.  On 27 December 1970, the applicant was awarded the Army Commendation Medal with "V" Device.  The orders for this award identified him as a PFC.

9.  On 19 April 1971, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.  His punishment consisted of 7 days extra duties.  The applicant's DA Form 2627 (Summarized Record of Proceedings under Article 15, UCMJ) identified him as a SP4. 

10.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was promoted to PFC effective 
10 January 1970.  There is no entry showing he was promoted to SP4.

11.  There are no orders in the applicant's Military Personnel Records Jacket (MPRJ) promoting him to SP4.

12.  The applicant's Standard Form 88, dated 9 June 1971, documenting his separation physical identifies him as a SP4.


13.  On 13 July 1971, the applicant was released from active duty due to the expiration of his term of service.  He had completed 2 years of active service that was characterized as honorable.  Item 5a (Grade, Rate or Rank) of the applicant's DD Form 214 shows his grade as a PFC.  Item 5b (Pay Grade) shows his pay grade as E-3.  Item 6 (Date of Rank) shows his date of rank as 
10 January 1970.

14. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show he was awarded the Army Commendation Medal with "V" Device or the Bronze Star Medal.  Item 24 does show he is authorized the Vietnam Service Medal with 2 bronze service stars and he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (shown as M-16).

15.  Based on the applicant's dates of service in Vietnam, Table B-1 of Army Regulation 600-8-22 (Military Awards) shows he served in the Vietnam Winter - Spring 1970 Campaign (1 November 1969 - 30 April 1970); the DA Sanctuary Counteroffensive Campaign (1 May 1970 - 30 June 1970); and the Vietnam Counteroffensive Phase VII Campaign (1 July 1970 - 30 June 1971).

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that all units assigned in Vietnam from 
8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order (DAGO) Number 8, dated 1974.

17.  Department of the Army Pamphlet 672-3 also shows that, during the time of the applicant’s assignment to the 2nd Battalion (Air Mobile), 327th Infantry the unit received the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period from 18 March 1968 - 2 May 1970, based on DAGO Number 48, dated 1971.

18.  Army Regulation 635-5 (Separations Documents), then in effect, provided, in pertinent part, that the DA Form 20 was among those source documents to be used when preparing the DD Form 214.

19.  Army Regulation 635-5, then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation, in pertinent part, stated that the active duty grade or rank and pay grade at the time of separation will be entered in Items 5a and 5b and the date of rank in item 6 of the 
DD Form 214.

20.  Army Regulation 672-5-1 (Awards) then in effect, in pertinent part, set forth requirements for the award of basic marksmanship qualification badges.  The qualification badge was awarded to indicate the degree in which an individual had qualified in a prescribed record course, and an appropriate bar was furnished to denote each weapon with which the individual had qualified.  The qualification badges were in three classes:  Expert, Sharpshooter, and Marksman.  This regulation listed the only weapons for which component bars are authorized on the marksmanship qualification badges.  This list included the rifle bar and the machine gun bar.  There were no authorized bars for the type of rifle (such as M14 or M16).

21.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star based on qualifying service for each campaign listed in Appendix B of this regulation.  The regulation states that authorized bronze service stars will be worn on the appropriate campaign and service medal, which in this case is the Vietnam Service Medal.  

22.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank on his DD Form 214 is incorrect because the rank on his Standard Form 88 shows he was a SP4.  He also contends that his award of the Army Commendation Medal with "V" Device should be entered on his DD Form 214.

2.  The applicant's Standard Form 88 is not a source document for the completion of the DD Form 214.  The only other document in the applicant's MPRJ that identified him as a SP4 was his DA Form 2627.

3.  There were no orders in the applicant's MPRJ promoting him to SP4.  The only source document available that would have been used in preparing his 
DD Form 214 was his DA Form 20.  The entries in item 18 of the DA Form 20, showing his rank at the time of his separation, confirm the entries contained in items 5a, 5b, and 6 of his DD Form 214.  

4.  Therefore, without evidence to the contrary, the entries in items 5a, 5b, and 6 of the applicant's DD Form 214 are presumed to be correct.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  Orders show the applicant was awarded the Bronze Star Medal and the Army Commendation Medal with "V" Device.  Therefore it is appropriate to include these awards on his DD Form 214.

6.  Based on his service with the 2nd Battalion (Air Mobile), 327th Infantry, he is authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

7.  The applicant's military personnel records show he participated in three campaigns during his service in Vietnam.  Therefore, he is entitled to three bronze service stars to be worn on his Vietnam Service Medal.  

8.  Orders show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge for the M-16 and the M-60.  Therefore, it is appropriate to amend item 24 of his DD Form 214 to show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Machinegun Bar.

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 amending item 24 of his DD Form 214 to show he was awarded or is authorized the Bronze Star Medal, the Army Commendation Medal with "V" Device, Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Machinegun Bar.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his rank at the time of his discharge.  



      _______ _   _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)                                         AR20090011455





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ABCMR Record of Proceedings (cont)                                         AR20090011455



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