IN THE CASE OF:	  

		BOARD DATE:	   28 May 2014 

		DOCKET NUMBER:  AR20130016604 


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 the following:

* rank/grade of sergeant (SGT)/E-5
* Air Medal, Bronze Star Medal with 1st oak leaf cluster (OLC) and "V" Device, and Army Commendation Medal with "V" Device

2.  The applicant states during his period of service in Vietnam a lieutenant put him in for promotion to pay grade E-5 and the three awards.  He earned them and wants his children to know his legacy.

3.  The applicant provides a copy of his 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 was inducted into the Army of the United States on 3 March 1970 and he served as a light weapons infantryman. 

3.  On 24 June 1970, he accepted nonjudicial punishment for wrongfully communicating a threat.  

4.  He was promoted to specialist four (SP4)/E-4 on 2 December 1970.

5.  He served in Vietnam from 15 August 1970 through 14 August 1971, during two campaigns.  He was assigned to Company B, 1st Battalion, 46th Infantry, 196th Brigade.

6.  General Orders (GO) Number 07733, issued by Headquarters, 23rd Infantry Division, dated 10 July 1971, awarded him the Bronze Star Medal for meritorious service from 1 August 1970 through 30 June 1971 in Vietnam.  

7.  He was honorably released from active duty on 2 November 1971.  He was credited with completing 1 year and 8 months of net active service with no time lost.  His DD Form 214 lists in:

* Item 5a (Grade, Rate, or Rank) – SP4
* Item 5b (Pay Grade) - E-4
* Item 6 (Date of Rank) - 12 December 1970
* Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Vietnam Service Medal with one bronze service star
* Republic of Vietnam Campaign Medal
* Army Commendation Medal
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

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

* Item 38 (Record of Assignments) he received "excellent" conduct and efficiency ratings throughout his period of service, there is no evidence of a commander's disqualification for award of the Army Good Conduct Medal during his period of service 

* Item 41 (Awards and Decorations) all the awards listed on his DD Form 214

9.  There are no orders in his personnel records authorizing or awarding him the Air Medal, Bronze Star Medal with 1st OLC and "V" Device, and Army Commendation Medal with "V" Device during his period of service in Vietnam.

10.  There are also no orders in his personnel records authorizing or promoting him to pay grade E-5 during his period of service in Vietnam.

11.  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 any awards pertaining to the applicant.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, govern the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal 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.

13.  Army Regulation 600-8-22 (Military Award) states:

	a.  The Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  The award is primarily intended for personnel on flying status, but will also be awarded to those personnel whose combat duties requires 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.

   b.  The Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or 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. 

	c.  The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

   d.  The "V" device is worn to denote participation in acts of heroism involving conflict with an armed enemy on the Bronze Star Medan and Army Commendation Medal.

   e.  A bronze service star is worn on campaign and service medals to denote participation in a named campaign for the Vietnam Service Medal.

14.  Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows his unit, the 1st Battalion, 46th Infantry, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, for the period 1 March through 9 October 1971, by DAGO Number 6, dated 1974.

15.  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.

16.  The requests, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, HRC, 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 awards.  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 of researching and assembling supporting information rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  GO awarded the applicant the Bronze Star Medal during his period of service in Vietnam.  This award is not listed on his DD Form 214.  Therefore, his DD Form 214 should be corrected to show this award.


2.  Despite his minor offense on 24 June 1970, there is no evidence of any other derogatory information in his service record.  Additionally, he received "excellent" conduct and efficiency ratings during his period of active duty.  It appears he met the criteria for and should be entitled to award of the Army Good Conduct Medal (1st Award) for his period of service from 3 March 1970 through 2 November 1971 and its addition to his DD Form 214.

3.  He served in Vietnam during two campaigns; therefore, he is entitled to award of one additional bronze service star for his already-awarded Vietnam Service Medal and correction to his DD Form 214 to show these service stars.

4.  GO awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation; therefore, he is entitled to correction of his DD Form 214 to show this unit award.

5.  With respect to correction of his DD Form 214 to show he was promoted to pay grade E-5, there is no evidence and he did not provide any showing he was recommended for or promoted to pay grade E-5 during his period of service in Vietnam or prior to his separation.  Without evidence - such as the promotion instrument (order) - it appears his pay grade was E-4 at time of his release from active duty on 2 November 1971.  There is an insufficient evidentiary basis to support correction of his DD Form 214 to show the rank/grade of SGT/E-5.

6.  With respect to correction of his DD Form 214 to show the Air Medal, Bronze Star Medal with 1st OLC and "V" Device, and Army Commendation Medal with "V" Device:

	a.  His achievements and honorable service during Vietnam are acknowledged.  However, there is no evidence of record and he provided none to show he was authorized or awarded these awards during this period.  Pertinent regulations show that formal recommendations, approval through the chain of command, and announcement in orders are required for award of the Air Medal, Bronze Star Medal, and Army Commendation Medal.  

	b.  While the available evidence is insufficient for correcting his DD Form 214 to show award of Air Medal, Bronze Star Medal with 1st OLC and "V" Device, and Army Commendation Medal with "V" Device, this in no way affects the applicant's right to pursue his claim for these awards by submitting a request through a Member of Congress under the provisions of Title 10, U.S. Code, section 1130.




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:

* awarding the applicant the Army Good Conduct Medal (1st Award) for his period of service from 3 March 1970 through 2 November 1971
* deleting from his DD Form 214 the Vietnam Service Medal with one bronze service star
* adding to his DD Form 214 the:

* Bronze Star Medal
* Army Good Conduct Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

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 correction of his DD Form 214 by showing the following:

* rank/grade of SGT/E-5
* Air Medal
* Bronze Star Medal with 1st OLC and "V" Device
* Army Commendation Medal with "V" Device



      _______ _   __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)                                         AR20130016604



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ABCMR Record of Proceedings (cont)                                         AR20130016604

   
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