IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013146 


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 of Discharge) to list the Silver Star.  He also requests to find out why he was not promoted to staff sergeant/E-6 (SSG) in Vietnam. 

2.  The applicant states the Silver Star is not on his DD Form 214.  He had the certificate but it was lost.  He further states that he was a sergeant/E-5 (SGT) when he arrived in Vietnam and he was not promoted to SSG even though he was the platoon leader.  Everyone except him was promoted to a higher rank in Vietnam.

3.  The applicant provides the following through his Congressman:

* DD Form 215 (Correction to DD Form 124)
* DD Form 214
* self-authored letter to his Congressman
* newspaper/magazine article

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 on 9 November 1965.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained on active duty was SGT.

3.  The applicant served in the Republic of Vietnam from 29 September 1967 through 24 September 1968.  He was assigned to Company A, 2nd Battalion, 327th Infantry Regiment, 101st Airborne Division.

4.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank he attained during his military service was SGT.  It further shows he was promoted to SGT on 26 July 1967.  There is no record of promotion orders or a recommendation for promotion to SSG in his records. 

5.  On 28 September 1968, the applicant was honorably released from active duty after completing 2 years, 10 months, and 20 days of active military service.  His DD Form 214 lists the following awards:

* National Defense Service Medal 
* Vietnam Service Medal 
* Republic of Vietnam Campaign Medal
* Parachutist Badge
* Purple Heart
* Combat Infantryman Badge 

6.  The applicant received a DD Form 215, dated 8 July 2009, which lists the following awards:

* Purple Heart (1st Oak Leaf Cluster)



* Army Good Conduct Medal
* National Defense Service Medal 
* Vietnam Service Medal with 4 bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Combat Infantryman Badge
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar 
* Marksman Marksmanship Qualification Badge with Pistol Bar

7.  There are no official orders in his records that show he was awarded a Silver Star. 

8.  During the processing of this case, a member of the Board staff reviewed the 
Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing general orders issued during the Vietnam era, which is maintained by the U.S. Army Human Resources Command Military Awards Branch, was also reviewed during the process of this case.  There were no Silver Star orders pertaining to the applicant in ADCARS.

9.  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.

10.  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.

11.  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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the 
ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the 
independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to finding out why the applicant was not promoted to SSG in Vietnam, the ABCMR corrects records; it is not an investigative body.  The applicant has the burden of proving an error or injustice by submitting evidence for consideration with his application.  His records did not show he had promotion orders or that he was ever recommended for promotion to SSG.

2.  With respect to the Silver Star:

	a.  The third highest award for valor is the Silver Star which requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. The ABCMR acknowledges and applauds the applicant's service in Vietnam.  

	b.  However, the governing Army regulation states that for personal decorations (which include the Silver Star) formal recommendation, approval through the chain of command, and announcement in orders are required.  In the absence of official orders, there is insufficient evidence to correct his records to show the Silver Star.

	c.  Nevertheless, while the available evidence is insufficient for adding the Silver Star to his DD Form 214, if in fact he was not awarded it 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.  If he has Silver Star orders, he may provide them with a request for reconsideration.

3.  This action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20110013146





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ABCMR Record of Proceedings (cont)                                         AR20110013146



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