IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030540 


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 his pay grade as E-5 and that he served in Vietnam.

2.  The applicant states he believes it may have been a clerical error.

3.  The applicant provides his 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 was inducted into the Army of the United States on 5 February 1968.  He completed initial entry training and he was awarded military occupational specialty (MOS) 94B (cook).
3.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 33 (Appointment and Reductions) the highest rank/grade he held was specialist four (SP4)/E-4, effective 13 November 1968, by Special orders 289, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC in 1968.

	b.  item 38 (Record of Assignments) he was stationed in Vietnam performing duties in:

		(1)  MOS 94B with Battery C, 4th Battalion, 77th Artillery during the period 20 March through 10 August 1969

		(2)  MOS 71B (clerk) with Headquarters and Headquarters Battery, 101st Airborne Division Artillery during the period 11 August 1969 to 6 January 1970.

	c.  item 38 he received "excellent" conduct and efficiency ratings throughout his service.

	d.  item 41 (Awards and Decorations) the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Vietnam Service Medal
* Army Commendation Medal
* Bronze Star Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

4.  On 17 January 1970, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year, 11 months, and 13 days of total active service.  The DD Form 214 he was issued at the time shows in:

* Item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) the entry "SP4" and "E4," respectively
* Item 6 (Date of Rank) the entry "13 Nov 68"
* Item 22c (Foreign and/or Sea Service) the entry "USARPAC  0  9  27," indicating he served in Vietnam for 9 months and 27 days
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal


* Bronze Star Medal
* Army Commendation Medal
* Meritorious Unit Commendation
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14 and
M-16)
* one overseas service bar

* Item 30 (Remarks) does not contain an entry showing his service in Vietnam

5.  A DA Form 2376 (Notification to State Adjutants General Release from Active Duty of Obligated Reservist), dated 17 January 1970, shows his rank as SP4.

6.  Special Orders Number 17, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, dated 17 January 1970, shows he was relieved from active duty and transferred to the USAR effective 17 January 1970.  His standard name line shows his rank as SP5.

7.  Letter Order Number 01-1016016, issued by the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, dated 23 January 1974, honorably discharged him from the USAR Control Group (Reinforcement) at the expiration of his term of service.  These orders show his rank as SP4.

8.  There are no orders in his official military personnel file (OMPF) promoting him to E-5.

9.  His records are void of any orders or other documents that indicate he was ever recommended for or awarded the Army Good Conduct Medal by proper authority.  His DA Form 20 shows all "excellent" conduct and efficiency ratings.  There are no adverse actions recorded in the available records and no disqualification by his chain of command.

10.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal 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.  There must have been no convictions by a court-martial.


11.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  It states that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Tet 69 Counteroffensive, 1969 (23 February - 8 June 1969)
* Vietnam Summer - Fall 1969 (9 June - 31 October 1969)
* Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970)

12.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows Battery C, 4th Battalion, 77th Artillery, the unit to which the applicant was assigned to during the period 20 March through
10 August 1969, was cited for award of the:

* Presidential Unit Citation for the period 10 through 21 May 1969 by Department of the Army General Order (DAGO) Number 16, dated 1972
* Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period 25 March through 14 May 1969 by DAGO 43, dated 1970

14.  Department of the Army Pamphlet 672-3 shows Headquarters and Headquarters Battery, 101st Airborne Division Artillery, the unit to which the applicant was assigned during the period 11 August 1969 to 6 January 1970, was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 through 2 May 1970 by
DAGO 48, dated 1971

15.  There is no evidence that either of his units in Vietnam was cited for award of the Meritorious Unit Commendation during his service in Vietnam.


16.  Army Regulation 635-5 (Separation Documents) prescribes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement or discharge.  It stated for item 5a, enter the grade in which serving at the time of separation.

17.  Army Regulation 635-5, chapter 2, in effect at the time, contained guidance on the preparation of the DD Form 214.  It stated item 22c would show the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed (e.g., USARPAC, etc.).

18.  Army Regulation 635-5, in effect at the time, did not provide for entering on the DD Form 214 the specific country where the service member served overseas.  However, the current version of the regulation states that for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in the remarks section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant participated in three campaign phases during his service in Vietnam.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show these bronze service stars.

2.  He completed a period of qualifying service ending with the termination of a period of Federal military service.  He received all "excellent" conduct and efficiency ratings throughout his tenure of service.  There is no record of any disciplinary action taken against him or a disqualification by his chain of command.  Therefore, it would be appropriate to award him the first award of the Army Good Conduct Medal for the period 5 February 1968 through 17 January 1970 and to correct his DD Form 214 to show this award.

3.  His units were awarded the Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his service in Vietnam.  Therefore, his DD Form 214 should be corrected to show these unit awards.


4.  Item 24 of the applicant's DD Form 214 shows award of the Meritorious Unit Commendation.  Although it appears that an administrative error was made when this unit award was added to his DD Form 214, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to delete the Meritorious Unit Commendation from his DD Form 214.  However, the applicant should be aware that these Proceedings will be properly filed in his OMPF.

5.  The evidence of record shows he served in the Vietnam during the period
20 March 1969 to 6 January 1970.  Although there was no provision for entering a Soldier's deployed service in the remarks section of their DD Form 214 at the time, there is no harm in applying current standards in this case.  Therefore, the entry "SERVICE IN USARPAC (VIETNAM) FROM 19690320 - 19700106" should be added to item 30 of his DD Form 214.

6.  The applicant's record shows he was advanced to the temporary rank/grade of SP4/E-4, with a date of rank of 13 November 1968.

7.  While Special Orders Number 17 that relieved him from active duty and transferred him to the USAR effective 17 January 1970 show his rank as SP5, there are no orders in his OMPF and he did not provide any orders promoting him to either the temporary or permanent grade E-5.  Additionally, there is no other evidence to show he held the rank/grade of SP5/E-5.  As such, without orders promoting him to the pay grade of E-5 it would be reasonable to presume the SP5 rank appearing on the special orders is a typographical error.  Therefore, there is no basis for granting this portion of his request.

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 Army Good Conduct Medal (1st Award) for the period 5 February 1968 through 17 January 1970;

	b.  adding to item 24 of his DD Form 214 the:

* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Presidential Unit Citation
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation

	c.  adding to item 30 of his DD Form 214 the entry "SERVICE IN USARPAC (VIETNAM) FROM 19690320 - 19700106."

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 showing his rank/grade as SP5/E-5 on 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)                                         AR20100030540



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ABCMR Record of Proceedings (cont)                                         AR20100030540



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