IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100021843 


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 advancement on the retired list to the rank of major.  He also requests award of the Silver Star.  

2.  The applicant states according to the 8 July 1983 letter he provided he was eligible for advancement to major, effective 14 November 1983.  He has been receiving retired pay as a captain since he retired.  He is 100 percent disabled and he needs the funds.  He states he requested a review of his records at the time of retirement, but he was unable to locate the supporting document.  
Additionally, he states he was severely wounded and he was written up for award of the Silver Star during his tour in Vietnam, but he never received it.  

3.  He provides four letters.

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 enlisted in the Regular Army (RA) on 20 August 1953 and was released from active duty on 21 August 1956 in the rank of sergeant.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Alabama Military District.    

3.  He enlisted in the RA on 16 November 1956 and continued to serve on active duty through a series of reenlistments.  

4.  On 1 June 1967, he was appointed as a Reserve commissioned officer in the rank of second lieutenant in the USAR and entered active duty.  

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) he served in Vietnam from 29 May 1968 through 18 March 1969
* Item 40 (Wounds) he sustained wounds to his back and neck on 24 July 1968
* Item 41 (Awards and Decorations) the Silver Star is not listed

6.  His service record doesn’t include a recommendation or orders for award of the Silver Star.   

7.  Item 12 (Appointments) of his DA Form 66 (Officer Qualification Record) shows he was promoted to captain in the Army of the United States on 1 June 1969.  

8.  By promotion letter, dated 14 December 1973, he was promoted as a Reserve captain, effective 1 June 1974.  

9.  Item 18 (Record of Assignments) of his DA Form 66 shows he was released from active duty on 31 December 1973.  

10.  Item 38 (Record of Assignment) of his DA Form 20 indicates he enlisted in the RA on 1 January 1974.  He was apparently in a dual status.  

11.  He was promoted in the RA to master sergeant on 18 March 1974 and to sergeant major with an effective date of 1 August 1979 and a date of rank of 11 July 1979.  

12.  By promotion letter, dated 29 October 1979, he was promoted to major in the USAR, effective 31 May 1976.  

13.  Orders 95-33, dated 16 May 1983, released him from active duty effective 31 August 1983.  The following day, he was placed on the retired list in the rank of sergeant major.

14.  A DA Form 3713 (Data for Retired Pay), dated 24 May 1983, shows his active duty grade and retired pay grade as sergeant major.  This document shows the highest grade he attained was major.

15.  In an 8 July 1983 letter, the Director, Retired Activities, USAR Components Personnel and Administration Center, St. Louis, MO, informed him that Title 10, U.S. Code, Section 3964 authorized advancement on the retired list upon completion of 30 years of active and retired service to the highest grade satisfactorily held as determined by the Secretary of the Army.  The letter indicated he was eligible for advancement to the grade of major on 14 November 1983.  

16.  Orders 167-13, dated 25 August 1983, amended the instructions on Orders Number 95-33, dated 16 May 1983, to show in part “You are transferred to US Army Reserve Control Group (Retired) as a Major O-4, on the date following retirement from active duty.”  

17.  His 31 August 1983 DD Form 214 (Certificate of Release or Discharge from Active Duty) doesn’t show award of the Silver Star.  

18.  A letter from the Chief of the Retirement Services Division, Retired Activities Directorate, dated 13 December 1983, informed him he was advanced on the retired list in the rank of captain/pay grade O-3, effective 14 November 1983.  

19.  His record is void of any evidence and he did not provide any evidence showing he served on active duty in the rank of major.

20.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal orders for award of the Silver Star pertaining to the applicant.


21.  References:

	a.  Army Regulation 600-39 (Dual Component Personnel Management Program) provided for individuals serving in the RA in an enlisted or warrant officer status to hold a commission in the USAR.  

	b.  Title 10, U.S. Code, section 3964, provides that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List on behalf of the Secretary for those who have attained 30 years of service.

	c.  Army Regulation 600-8-22 (Military Awards) states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	d.  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 a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

	e.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in the RA as an enlisted Soldier from 20 August 1953 through 31 May 1967.  

2.  Evidence of record indicates he served on active duty as an officer from 1 June 1967 through 31 December 1973, and then enlisted in the RA on 1 January 1974 while simultaneously serving as a Reserve commissioned officer.  Records show he was promoted to major in the USAR on 31 May 1976, which is the highest rank he held while in a dual component status in the RA and USAR.  

3.  On 8 July 1983, the Director of Retired Activities informed him that he was eligible for advancement to the rank of major on the retired list, effective 14 November 1983.

4.  Orders published on 16 May 1983 show he retired from active duty on 31 August 1983 and was placed on the retired list in the rank of sergeant major.  

5.  Under Title 10, USC, Section 3964, he should have been advanced to the highest rank he satisfactorily held on active duty at the completion of a combined 30 years of active and retired service.  

6.  His record is void of any evidence and he did not provide any evidence showing he served in an active duty status in the rank of major.

7.  It appears he was erroneously informed that he was eligible for advancement on the retired list in the highest rank held major, effective 14 November 1983.  As a result, erroneous orders, dated 25 August 1983, amended his retirement orders to show he was transferred to the USAR Control Group (Retired) in the rank of major, the day following retirement from active duty.  However, this mistake was identified and amendment orders were subsequently issued placing him on the retired list in the correct rank of captain/pay grade O-3, effective 14 November 1983.  

8.  It appears that an administrative error initially occurred in this case regarding the applicant’s rank on the retired list.  However, it was subsequently corrected in accordance with both statute and Army policy.  Therefore, it would not be appropriate to now correct his records to show he was advanced on the retired list in the rank of major/pay grade O-4.  

9.  Although his DA Form 20 shows he was wounded in action, his service record doesn’t include any recommendation or orders for award of the Silver Star.  Therefore, there is insufficient evidence on which to award him the Silver Star.
10.  While the available evidence is insufficient for awarding him a Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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)                                         AR20100021843



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ABCMR Record of Proceedings (cont)                                         AR20100021843



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