BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100018841 


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 items 5a (Grade, Rate or Rank), 5b (Pay Grade), and 
9 (Date of Birth) of his DD Form 214 (Report of Transfer or Discharge) be corrected.  He also requests the Purple Heart be added to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

2.  The applicant states:

* His date of birth is 15 December 1950
* His pay grade should be E-3/private first class
* He received the Purple Heart in Vietnam 

3.  The applicant provides:

* Birth certificate
* Court order for a name change
* DD Form 214

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 DD Form 398 (Statement of Personal History), dated 
3 February 1970, and his original DD Form 47 (Record of Induction) show he was born on 5 December 1950.  The carbon copy of his DD Form 47 shows his date of birth as 5 December 1946.  He was inducted into the Army of the United States on 3 February 1970.  He served as a light weapons infantryman assigned to Headquarters and Headquarters Company, 1st Brigade, 101st Airborne Division in Vietnam from 24 July 1970 through 18 September 1970.  He was assigned to Companies B and D, 2nd Battalion, 502nd Infantry in Vietnam from 19 September 1970 through 31 May 1971.  He was assigned to Company C, 1st Battalion, 52nd Infantry in Vietnam from 1 June 1971 through 7 August 1971.  On 9 November 1971, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.   

3.  Item 5a of his DD Form 214 shows the entry "PV2" [private two].  Item 5b shows the entry "E2."  Item 9 shows he was born on 5 December 1946.  Item 
24 shows the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar as authorized awards.  

4.  Headquarters, 85th Evacuation Hospital (SMBL) General Orders Number 267, dated 25 November 1970, show the applicant received the Purple Heart for wounds received in action on 25 November 1970.

5.  His date of birth is shown as 5 December 1946 on the following documents:

* DA Form 428 (Application for Identification Card)
* DA Form 20 (Enlisted Qualification Record)
* Two DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ)
* DA Form 2475 (Personnel Data Card)
* Federal Bureau of Investigation Fingerprint Card
* Enlisted Short Accession Analysis Data Sheet
* DA Form 2962 (Security Termination Statement and Debriefing Certificate)
* DA Form 669 (General Educational Development Individual Record)
6.  Item 33 (Appointments and Reductions) of his DA Form 20 shows he was reduced from E-3 to E-1 effective 18 February 1971 (special court-martial sentence).  He was appointed to E-2 effective 18 May 1971.  

7.  No evidence shows he was promoted to E-3 after 18 May 1971.

8.  In support of his claim to amend his date of birth, the applicant provided a birth certificate issued on 5 January 2010 which shows he was born on 
15 December 1950.

9.  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 the applicant's unit (2nd Battalion, 502nd Infantry) at the time of his assignment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 6, dated 1974.  

DISCUSSION AND CONCLUSIONS:

1.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.

2.  Although the birth certificate provided by the applicant shows he was born on 15 December 1950, the majority of evidence in this case shows he was born on 
5 December 1946.  It appears he appropriately served on and was released from active duty under the date of birth of 5 December 1946.  While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's records.  This Board action will be filed in the applicant's military records so a record of his date of birth will be on hand.

3.  The applicant contends his pay grade was E-3 but he provided no evidence to support this contention.  His military records show he was reduced from E-3 to 
E-1 in February 1971 and he was appointed to E-2 in May 1971, which is properly reflected in items 5a and 5b of his DD Form 214.   Therefore, there is an insufficient basis for amending items 5a or 5b of his DD Form 214.

4.  Orders show he received the Purple Heart.  His DD Form 214 should be corrected to show this award.

5.  The applicant's unit (2nd Battalion, 502nd Infantry) was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.  His DD Form 214 should be corrected to show this unit award.

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 adding the Purple Heart and Republic of Vietnam Gallantry Cross with Palm Unit Citation to item 24 of his DD Form 214.

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 amending items 5a, 5b, or 
9 of his DD Form 214.  




      _______ _  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)                                         AR20100018841





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ABCMR Record of Proceedings (cont)                                         AR20100018841



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