IN THE CASE OF:	  

		BOARD DATE:	 26 May 2011 

		DOCKET NUMBER:  AR20100028207 


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 in:

   a.  item 5a (Grade Rate or Rank) sergeant (SGT); and
   
   b.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Bronze Star Medal (BSM) with Oak Leaf Cluster (OLC).

2.  The applicant states he was never promoted to specialist five (SP5), he was promoted to SGT, and wore SGT stripes.

3.  The applicant provides an order for the BSM with OLC.

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 record shows he enlisted in the Regular Army on 25 March 1968.  He served in the Republic of Vietnam (RVN) from 11 October 1969 to
8 November 1970.

3.  His DA Form 20 (Enlisted Qualification Record) shows he received no less than "excellent" conduct and efficiency ratings during all of his active duty assignments.  His Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

4.  Headquarters, U.S. Army Support Command, Qui Nhon, published the following orders on the dates indicated:

   a.  Special Order Number 89, dated 30 March 1970, announced the applicant's promotion to the rank of SP5 effective 6 March 1970; and
   
   b.  General Order Number 999, dated 15 October 1970, announced the applicant's award of the BSM with OLC.

5.  On 9 November 1970, the applicant was honorably released from active duty after completing 2 years, 7 months, and 15 days of active service.  His DD Form 214 contains the entry "SP5" in Item 5a and the following list of awards in item 24:

* National Defense Service Medal
* VSM
* BSM
* RVN Campaign Medal with Device 1960
* Sharpshooter Marksmanship Qualification Badge with M-14 Rifle bar
* Overseas Service Bar

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Section III states the active duty grade (rank) held at the time of separation will be entered in item 5a.  All decorations, service medals, campaign credit, and badges awarded or authorized will be entered in item 24.

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-13 of the awards regulation contains guidance on the VSM and states that a bronze service star is authorized with this award for each campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam participation credit was awarded for the following four campaigns:

* Vietnam Summer-Fall 1969
* Vietnam Winter-Spring 1970
* DA Sanctuary Counteroffensive
* Vietnam Counteroffensive Phase VII

8.  Army Regulation 672-5-1 (Awards) stated the AGCM was awarded for each 
3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  

9.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the RVN Gallantry Cross with Palm Unit Citation to all units assigned to the RVN from 8 February 1962 through 28 March 1973.

10.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the Overseas Service Bar.  It states a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. For Vietnam service, one overseas service bar was authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends items 5a and 24 of his DD Form 214 should be corrected.

2.  The evidence of record confirms the applicant was awarded the BSM with OLC in official orders.  Therefore, it would be appropriate to correctly document this award on his DD Form 214.

3.  The evidence of record confirms the applicant received no less than “excellent” conduct and efficiency ratings at each of his active duty assignments as evidenced by his DA Form 20.  In addition, his OMPF is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the AGCM for his qualifying period of honorable service from
25 March 1968 through 9 November 1970 and to add this award to his DD Form 214.

4.  Based on his service and campaign participation in the RVN, the applicant is also authorized 4 bronze service stars to affix to his already-awarded VSM, 
2 Overseas Service Bars instead of 1, and award of the RVN Gallantry Cross with Palm Unit Citation.  Accordingly, it would be appropriate to add these awards to his DD Form 214.

5.  Orders were published promoting the applicant to the rank of SP5 on 6 March 1970.  This is the rank he held on the date of discharge and it is correctly reflected in item 5 of his DD Form 214.  There is no evidence to show that he was promoted to "SGT."  The applicant has established no basis for changing item 5a of his DD Form 214 to show his rank as "SGT."

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:

   a.  awarding him the AGCM for his qualifying period of honorable service from 25 March 1968 to 9 November 1970;

   b.  deleting the BSM, VSM, and Overseas Service Bar from item 24 of his DD Form 214;
   
   c.  adding the following awards to item 24 his DD Form 214:

* AGCM
* BSM with OLC
* Vietnam Service Medal with 4 bronze service stars
* 2 Overseas Service Bars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

	d.  issuing him a document to show the above corrections.

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 correcting item 5a of his DD Form 214 to show the rank of "SGT."




      _______ _   _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)                                         AR20100028207



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ABCMR Record of Proceedings (cont)                                         AR20100028207



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