IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120004705 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* his Army Commendation Medal was upgraded 
* he was promoted to the grade of E-5
* he was awarded five Air Medals
* he was awarded the Bronze Star Medal

2.  The applicant states, in effect, his Army Commendation Medal for meritorious service in the Republic of Vietnam should be upgraded for his service as a combat aerial flight crew door gunner and 5 months as a crew chief on a UH-1 helicopter.  He claims he earned five Air Medals including one with "V" Device for heroism as a door gunner.  He states he is missing Air Medals and flight records for part of June and all of July and August 1969 in addition to a Bronze Star Medal which he claims was awarded to his unit for completing 4 months of flight time.  He also states while serving in the Republic of Vietnam in 1969 and while at Fort Carson, CO, in 1970, he was promised promotion to E-5.

3.  The applicant provides:

* a self-authored statement
* General Orders Number 14638, issued by Headquarters, 1st Infantry Division, dated 27 November 1969


* General Orders Number 16948, issued by the same headquarters, dated 10 December 1969
* 6 pages of documentation pertaining to his recommendation for promotion

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 requests upgrade of his award of the Army Commendation Medal.  The ABCMR operates under the procedures set forth in Army Regulation 15-185 (ABCMR) that provides the Board will not consider any application until the applicant has first exhausted all other administrative remedies to correct the alleged error or injustice.  Requests to upgrade an award of the Army Commendation Medal must be forwarded to the Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  

3.  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.

4.  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.  Therefore, based on the foregoing, this portion of the applicant's request will not be discussed any further in these Proceedings.

5.  The applicant enlisted in the Regular Army on 8 July 1968 for a period of        3 years.  He completed training and he was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).

6.  Unit Orders Number 165, issued by the 3rd Enlisted Student Company, U.S. Army Aviation Regiment, Fort Rucker, AL, dated 2 December 1968, appointed him to the temporary rank/grade of specialist four (SP4)/E-4, effective
5 December 1968.

7.  He served in Vietnam from 8 January 1969 to 1 November 1969.  He was assigned to:

* Company A, 1st Aviation Battalion, 1st Infantry Division from 17 January through 15 April 1969
* Troop D, 1st Squadron, 4th Cavalry Regiment from 16 April to                   1 November 1969

8.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was the temporary rank/grade of SP4/E-4 with a date of rank of 5 December 1968.

9.  His service records do not contain any orders promoting him to SGT/E-5.

10.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Bronze Star Medal; however, it shows he was awarded three Air Medals, one with "V" Device.  Additionally, his record does not contain any order for the Bronze Star Medal or orders for any additional Air Medals.

11.  On 19 April 1971, he was honorably released from active duty (REFRAD) as an overseas returnee.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He completed 2 years, 9 months, and 12 days of total active service.  The DD Form 214 he was issued shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "SP4" and "E-4," respectively
* Item 6 (Date of Rank) the entry "5 Dec 68"
* Item 24 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Armed Forces Expeditionary Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Air Medal (1st Award)
* Air Medal (3rd Award) and with "V" Device

12.  The applicant provides:

* General Orders Number 14638, dated 27 November 1969, that awarded him the Air Medal with "V" Device for heroism while participating in aerial flight in the Republic of Vietnam on 27 September 1969
* General orders Number 16948, dated 10 December 1969, that awarded him the Air Medal (2nd Award) for meritorious achievement while 
participating in aerial flight in the Republic of Vietnam for the period
23 September 1969 to 3 October 1969
* a DA Form 2496 (Disposition Form), subject:  Recommendation for Promotion, dated 6 February 1971, wherein his platoon sergeant recommended him for promotion to E-5
* a follow-on comment by his company commander, dated 9 February 1971, recommending approval of the platoon sergeant's recommendation for the applicant's promotion
* page 2 of a memorandum, subject:  Recommended List for Promotion to Enlisted Personnel E-5, dated 7 April 1971, that shows he was recommended for promotion to E-5 in March 1971 and placed on the recommended list with 595.9 points

13.  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 any orders for the Bronze Star Medal.  However, it contains a copy of General Orders Number 14908, issued by Headquarters, 1st Infantry Division, dated 8 November 1969, that shows he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam for the period 7 September to 22 September 1969.

14.  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.  It stated that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.

15.  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 contains guidance on the preparation of the DD Form 214.  It states that items 5a and 5b will 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.

16.  Army Regulation 600-8-22 (Military Awards) states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties 
require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

17.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  It stated the Bronze Star Medal may have been awarded for heroism or for meritorious achievement or service which did not involve aerial flight but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence is insufficient to correct the applicant's DD Form 214 to show he was promoted to or released from active duty in the grade E-5.  The recommendation that the applicant provided for promotion to E-5 is just that, a recommendation.  There is no evidence of record and he did not provide any evidence that shows he met or exceeded the promotion point cutoff for promotion to E-5.  Additionally, his service records do not contain orders promoting him to
E-5 and his DA Form 20 shows the highest rank/grade he attained during his period of active service was SP4/E-4.  In the absence of supporting evidence that shows he was promoted to E-5 prior to his REFRAD, there is no basis for granting this portion of his request.

2.  The applicant claims he earned five Air Medals, including one with "V" Device for heroism, and states he is missing his flight records.  There is no evidence of record and he did not provide any evidence that shows he was awarded five Air Medals.  Review of ADCARS contains a general order for an Air Medal that the applicant did not provide; however, it appears this Air Medal is already included in the number of Air Medals reflected on his DD Form 214.  Therefore, there is an insufficient evidentiary basis for adding any additional awards of the Air Medal to his DD Form 214.

3.  There is no evidence of record and he did not provide any evidence that shows he was recommended for or awarded the Bronze Star Medal, or that this award was announced in orders.  In the absence of orders, there is insufficient evidentiary basis for granting this portion of his request.

4.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20120004705



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ABCMR Record of Proceedings (cont)                                         AR20120004705



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