IN THE CASE OF:
BOARD DATE: 11 December 2012
DOCKET NUMBER: AR20120008184
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 records to show his pay grade as E-5. He also requests award of the Bronze Star Medal (BSM).
2. The applicant states he should have been awarded the BSM. He could not contact a witness; SGT D____ S. C___ passed away.
3. The applicant provides:
* letters of support for the BSM
* service personnel records
* orders for the Purple Heart and Air Medal
* 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 was inducted into the Army of the United States on 21 July 1966. He served as a helicopter repairman in Vietnam and he was honorably released from active duty on 13 May 1968 in the temporary rank/grade of specialist four (SP4)/E-4. He was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows in:
* item 5a (Grade, Rate, or Rank), the entry "SP4 (T) [temporary] See 30"
* item 5b (Pay Grade), the entry "E-4"
* item 6 (Date of Rank), the entry "23 Oct 67 [23 October 1967]"
* item 30 (Remarks), the entry "Item 5a: PFC [private first class] E-3 (P) [permanent] Date Appointed 8 Apr 67 [8 April 1967]"
4. Unit Orders Number 69, 336th Assault Helicopter Company, dated 23 October 1967, show he was promoted to the temporary grade of SP4/E-4.
5. Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was appointed to SP4/E-4 (T) effective 23 October 1967.
6. A DA Form 1049 (Personnel Action), dated 21 February 1968, shows his commanding officer recommended him for promotion to the temporary grade of specialist five (SP5)/E-5. His commanding officer also requested a waiver of 4 months time in service and 4 months time in grade in order to promote him.
7. There is no evidence of record which shows he was recommended for promotion to SP5/E-5 by a promotion selection board and placed on a recommended promotion list prior to his release from active duty on 13 May 1968.
8. There are no orders for the BSM in the available records.
9. Item 41 (Awards and Decorations) of his DA Form 20 does not show entitlement to the BSM.
10. A 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for award of the BSM.
11. In support of his request for the BSM, he provided two letters of support from family members of a wounded Soldier in Vietnam. They attest the applicant saved the Soldier's life and he should be recognized for his heroic action.
12. Army Regulation 600-200 (Enlisted Promotions and Reductions), in effect at the time, stated recommendation by a promotion selection board and placement on a permanent recommended promotion list was required for all promotions to sergeant and staff sergeant. It also stated the promotion authority for these ranks was a field grade commander.
13. Army Regulation 600-8-22 (Military Awards) states the BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.
14. Title 10, U.S. Code, section 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.
15. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his records should be corrected to show his pay grade as E-5 and the recommendation for promotion to the temporary rank/pay grade of SP5/E-5 were noted. However, since there is no evidence of record which shows he was recommended for promotion to SP5/E-5 by a promotion selection board and placed on a recommended promotion list prior to his release from active duty on 13 May 1968, there is insufficient evidence with which to grant his request to change his pay grade to E-5.
2. There are no orders for the BSM in the available records. As such, there is insufficient evidence with which to grant his request for award of the BSM.
3. While the available evidence is insufficient for awarding the applicant the BSM, this is no way affects his right to pursue his claim for the BSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.
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 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) AR20120008184
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ABCMR Record of Proceedings (cont) AR20120008184
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