IN THE CASE OF: 

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130013335 


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 the following corrections of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge):

* Item 5a (Grade, Rate, or Rank) to show the rank of specialist four (SP4)
* Item 5b (Pay Grade) to show pay grade E-4
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) to show all the awards he is entitled to

2.  The applicant states he was reduced from pay grade E-2 to E-1 for 30 days in February 1970.  His records were messed up and he received E-2 pay for the rest of his time in the service.  On 3 July 1973, he received back pay two years after his discharge.  Two DA Forms 2139 (Military Pay Voucher) show he was promoted to E-3 and E-4.  He would like to have his DD Form 214 corrected to show his rank and pay grade as E-4.  Also, he requests his DD Form 214 list all the awards he is entitled to which are not listed.

3.  The applicant provides copies of his DD Form 214 and two DA Forms 2139.

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 20 August 1969 and held military occupational specialty 11B (light weapons infantryman).  He was advanced to the rank of private two (PV2), pay grade E-2, on 20 December 1969.

3.  His record contains the following:

   a.  A DA Form 2627-1 (Record of Proceedings, Under Article 15, Uniform Code of Military Justice), which shows that on 16 February 1970 he accepted nonjudicial punishment under Article 15 for being absent without leave from 8 to 15 February 1970.  His punishment included a reduction to pay grade E-1 and a forfeiture of pay.

   b.  Special Orders (SO) Number 54, issued by Headquarters, 1st Infantry Division, dated 23 February 1970, promoting him to the rank of private first class (PFC), pay grade E-3, with a date of rank of 22 February 1970.

4.  He served in Vietnam from 19 February 1970 through 20 June 1970, during two campaigns.  He was assigned to Company D, 1st Battalion, 8th Cavalry, 1st Cavalry Division (Airmobile (AM)).

5.  His record also contains the following:

   a.  General Orders (GO) Number 13388, issued by Headquarters, 1st Cavalry Division (AM), dated 25 July 1970, awarding him the Army Commendation Medal with "V" Device.  The orders stated he distinguished himself by heroism in sustained combat operations against a hostile enemy force in the Republic of Vietnam from 28 to 30 May 1970.  He pursued the enemy with aggressive military tactics, neutralizing and defeating him whenever contract could be made. His heroic and valiant actions were often characterized by unselfishly exposing himself to hostile fire under the adverse conditions inherent in a combat environment.
   
   b.  SO Number 180, issued by Valley Forge General Hospital, dated 1 September 1970, promoting him to the rank of SP4, pay grade E-4, with an effective date and date of rank of 1 September 1970.

   c.  A request for amended orders, dated October 1970, which stated he had an Article 15 in effect at the time the PFC orders were cut and he was ineligible for promotion at the time.  Amended orders for PFC must have an effective date later than 15 March 1970 to be accepted by finance.

   d.  A DA Form 2496-1 (Disposition Form), dated 29 April 1971, wherein he requested an early separation to attend technical school; his pay grade is shown as E-4.

   e.  A memorandum, dated 12 May 1971, approving his early separation not earlier than 7 June 1971; the memorandum does not show his pay grade.

   f.  SO issued by Headquarters, 1st Cavalry Division (AM), on/for:

		(1)  Number 18, dated 28 May 1971, reassigning him to the transfer point; his pay grade is listed as E-4; and 

		(2)  Number 19, dated 1 June 1971, amending SO Number 18 to list his pay grade as E-2.

   g.  SO Number 139, issued by Headquarters, III Corps and Fort Hood, dated 4 June 1971, relieving him from active duty effective 8 June 1971; the orders list his pay grade as E-2.

6.  He was honorably released from active duty on 7 June 1971 and was transferred to the U.S. Army Reserve (USAR).  He was credited with completing of 1 year, 9 months, and 11 days of net active service with 7 days of time lost.  His DD Form 214 lists in:

* Item 5a – PV2
* Item 5b (Pay Grade) – E-2
* Item 6 (Date of Rank) – 20 December 1969
* Item 24 – the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Expert Marksmanship Qualification Badge with Rifle Bar, and the Army Commendation Medal with "V" Device

7.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 33 (Appointments and Reductions) he was promoted to pay grade   E-2 on 20 December 1969; the advancement to pay grade E-3 and promotion to pay grade E-4 are lined through
* Item 41 (Awards and Decorations) all the awards listed on his DD Form 214 

8.  His record is void of any orders authorizing or awarding him any awards other than those listed on his DD Form 214.

9.  He was discharged from the USAR on 1 August 1969; the orders list his rank as PV2.

10.  He provided copies of two DA Forms 2139, dated 3 July 1973, which show a refund of previously collected pay for the difference between pay grades E-2 and E-3 and E-3 and E-4.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The regulation stated items 5a and 5b would list the active duty grade or rank and pay grade at time of separation and item 6 would list the effective date for the grade shown in items 5a and 5b.

12.  Army Regulation 600-8-22 (Military Awards) states:

   a.  The Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  
   
	b.  A bronze service star will be worn on the appropriate campaign or service medal based on qualifying service for each campaign listed in appendix B, including the Vietnam Service Medal.

13.  Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows his unit, the 1st Battalion, 8th Cavalry, was cited for award of the:

* Valorous Unit Award, for the period 1 May through 28 June 1970, by DAGO Number 43, dated 1972
* Republic of Vietnam Gallantry Cross with Palm Unit Citation, for the period May 1969 to February 1970, by DAGO Number 211, dated 1973

DISCUSSION AND CONCLUSIONS:

1.  With respect to correction of items 5a and 5b of the applicant's DD Form 214:

	a.  His initial promotion to E-3 was revoked because he was ineligible at the time as a result of an Article 15.  His record is void of the actual date he was advanced to pay grade E-3.  Orders were issued promoting him to E-4 on 1 September 1970.  Prior to his 1971 separation, orders were published amending previously-issued orders to list his pay grade as E-2 vice E-4.  

	b.  His record is void of the facts and circumstances of his promotion again to pay grade E-2 after his reduction in February 1970 and the subsequent second reduction to pay grade E-2 other than the amended orders.  There is no evidence and he did not provide sufficient evidence showing he was improperly discharged in pay grade E-2.  Without evidence, it appears his pay grade was E-2 at time his separation on 7 June 1971.  He was discharged from USAR in pay grade E-2.  

	c.  In view of the foregoing, there is an insufficient evidentiary basis for granting him the requested relief.

2.  With respect to correction of his DD Form 214 to show all the awards he is entitled to, GO awarded him the Army Commendation Medal with "V" Device for heroism in sustained combat operations against a hostile enemy force from 28 to 30 May 1970 in Vietnam.  Notwithstanding the absence of orders for the Combat Infantryman Badge, the evidence shows he served in an infantry MOS in an armored cavalry regiment, and participated in ground combat.  It appears he met the criteria for award of the Combat Infantryman Badge.  Therefore, he should be awarded the Combat Infantryman Badge and his DD Form 214 should be corrected to show this badge.

3.  GO awarded his unit the Valorous Unit Award and Republic of Vietnam Gallantry Cross with Palm Unit Citation during his period of service in Vietnam.  He is therefore entitled to correction of his DD Form 214 to show these unit awards.









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:

* awarding the applicant the Combat Infantryman Badge for participation in ground combat from 28 to 30 May 1970
* adding the Combat Infantryman Badge, Valorous Unit Award, and Republic of Vietnam Gallantry Cross with Palm Unit Citation to his DD Form 214

2.  The Board further determined that the evidence presented was 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 correction of items 5a and 5b of his DD Form 214 to show his rank and pay grade as SP4/E-4.




      ______ _   _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)                                         AR20130013335





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ABCMR Record of Proceedings (cont)                                         AR20130013335



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