IN THE CASE OF:	  

		BOARD DATE:  6 March 2012

		DOCKET NUMBER:  AR20110023898 


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 rank/grade as specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4
* awards of the Purple Heart and Bronze Star Medal

2.  The applicant states he was awarded the Bronze Star Medal a few days after his award of the Purple Heart.  His platoon sergeant told him he would be awarded the Bronze Star Medal and promoted to SP5.  A few weeks later, he was shipped out for medical treatment.  It was there that someone laid the Bronze Star Medal on his pillow.  He does not have the orders and the award is not reflected on his DD Form 214.

3.  The applicant provides:

* Purple Heart Certificate
* DA Form 8275-2 (Clinical Record Cover Sheet)
* 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 records show he was inducted into the Army of the United States on 27 June 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  Special Orders Number 268 issued by Headquarters, U.S. Army Training Center, Fort Polk, LA, dated 22 October 1968, awarded him the Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60).

4.  He served in Vietnam with Company C, 2nd Battalion, 39th Infantry, 9th Infantry Division, from on or about 15 December 1968 to on or about 28 April 1969.

5.  While in Vietnam, Headquarters, 9th Infantry Division, published the following special orders in relation to his promotion/appointment:

* Special Orders Number 365, dated 30 December 1968, promoted him to private first class/E-3
* Special Orders Number 59, dated 28 February 1969, promoted him to SP4/E-4 effective 1 February 1969

6.  He was wounded in action in Vietnam on 23 March 1969.  He provides a DA Form 8-275-2, dated 28 April 1969, which shows he suffered multiple fragment wounds.  He was initially treated at the 23rd Surgical Hospital and awarded the Purple Heart on the same date.  He was transferred to the 29th Evacuation Hospital on 28 March 1969 and the U.S. Army Hospital, Okinawa, on 1 April 1969.  He was ultimately transferred to the Naval Hospital, St. Albans, NY.

7.  His DA Form 20 (Enlisted Qualification Record) shows the following entries:

* item 2 (Grade) and item 3 (Date of Rank) are penciled in with the entries "SP4" and "1 February 1969"
* item 33 (Appointments and Reductions) shows his highest rank/grade as SP4/E-4
* item 39 (Record of Assignment) shows he was transferred to the U.S. Army Hospital in Japan in a patient status on 2 April 1969 and to St. Albans, NY, on 30 April 1969
* item 40 (Wounds) shows he suffered multiple fragment wounds to his body on 23 March 1969
* item 41 (Awards and Decorations) does not show the Purple Heart or the Bronze Star Medal

8.  General Orders Number 3781 issued by Headquarters, 9th Infantry Division, dated 29 March 1968, awarded him the Army Commendation Medal with "V" Device for heroism on 2 March 1969.

9.  Subsequent to completing treatment, he was assigned to Company A, 6th Battalion, 3rd Basic Combat Brigade, Fort Dix, NJ.  He remained there until SO Number  38 issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, ordered his reassignment to the U.S. Army Transition Center for separation processing on 28 June 1970.  The orders list his rank as SP4.

10.  He was honorably released from active duty on 29 June 1970.  He completed 2 years of creditable active service, 4 months and 15 days of which was foreign service.  His DD Form 214 shows:

* items 5a (Grade, Rate, or Rank), 5b (Pay Grade), and 6 (Date of Rank), the entries "SP4," "E-4," and "1 FEB 69," respectively
* item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), the –

* Combat Infantryman Badge
* National Defense Service Medal
* Vietnam Campaign Medal
* Army Commendation Medal
* Vietnam Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

11.  His records do not contain official orders awarding him the Bronze Star Medal and/or official orders promoting him to SP5/E-5.

12.  Army Regulation 600-8-22 (Military Awards) states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  Promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214.  It stated items 5a and 5b show the active duty rank and pay grade at time of the Soldier's separation (the rank is taken from the Soldier's promotion/reduction orders) and item 6 shows the date of rank.

15.  A review of his records indicates his entitlement to additional awards which are not listed on his records.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his service with the 2nd Battalion, 39th Infantry, from 15 December 1968 to on or about 28 April 1969, this unit was awarded the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from January to June 1969 based on Department of the Army General Orders Number 59, dated 1969
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 19 December 1966 to 28 June 1969 based on Department of the Army General Orders Number 159, dated 1969

17.  Appendix B of Army Regulation 600-8-22 shows that during his service in Vietnam, campaign participation credit was awarded for the Vietnam Counteroffensive Phase VI (2 November 1968-22 February 1969) and Tet 69 Counteroffensive 1969 (23 February-8 June 1969) campaigns.  This regulation also states a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was wounded in action on 23 March 1969 and underwent treatment at various hospitals.  He was awarded the Purple Heart, but the award was inadvertently omitted from his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  General orders awarded him the Army Commendation Medal with "V" Device for heroism.  It appears the "V" device was inadvertently omitted from his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show the Army Commendation Medal with "V" Device.

3.  General orders awarded his unit in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records.  Therefore, he is entitled to correction of his records to show these unit awards.

4.  He was awarded the Vietnam Service Medal.  Additionally, he participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to two bronze service stars to be affixed to his Vietnam Service Medal.

5.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60) which is not shown on his records.  Therefore, he is entitled to correction of his records to show this badge.

6.  With respect to the Bronze Star Medal, the governing Army regulation states that for personal decorations (which include the Bronze Star Medal) formal recommendations, approval through the chain of command, and announcement in orders are required.  Regrettably, there is insufficient evidence to correct his records to show the Bronze Star Medal in the absence of official orders.

7.  With respect to his rank/grade, multiple documents in his service record show the highest rank/grade he held was SP4/E-4.  Nothing in his records shows he was recommended for or promoted to SP5/E-5.  Therefore, there is insufficient evidence to correct his rank/grade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X  __  ____X __  ____X  __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* deleting the Army Commendation Medal and Vietnam Service Medal from item 24 of his DD Form 214
* adding the following awards to item 24 of his DD Form 214 –

* Purple Heart
* Army Commendation Medal with "V" Device
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60)

2.  The Board further determined 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 the Bronze Star Medal and the rank/grade of SP5/E-5.



      _______ _   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)                                         AR20110023898



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ABCMR Record of Proceedings (cont)                                         AR20110023898



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