IN THE CASE OF:	  

		BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130020481 


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:

* removal of the DA Form 67-6 (U.S. Army Officer Efficiency Report) (OER)) for the period 9 September 1968 through 26 January 1969 from his records
* award of the Bronze Star Medal

2.  The applicant states:

   a.  He believes that he is making a most unusual request for an OER written by Major (MAJ) Jxxx Bxxxxxx Txxxxx on 3 February 1969 to be expunged from his records.  In light of his belief, he will provide detail to support his position.  This detail may be wordy, but necessary so that the Board will understand why he is making such an unusual request.  

   b.  He had not seen the OER written by MAJ Txxxxx until he received his records some 10 years ago.  Since first reading MAJ Txxxxx's comments, he remains plagued by the words that were written.  He was not then, nor is he now, the person described by MAJ Txxxxx.  He has discussed this matter with both active and retired Army officers and has taken their collective advice to request this correction.

   c.  He requests the Board consider the OERs he received while assigned to the 197th Infantry Brigade, Fort Benning, GA, and his award of the Army Commendation Medal for his service during that tour of duty.  The position he held then would have normally been held by a captain (CPT).

   d.  He also requests the Board consider the OERs he received while assigned to the 25th Supply and Transportation Battalion, Provisional Company, Dau Tieng, Vietnam, by then CPT Jxxx H. Kxxxx and endorsements of then MAJ Jxxxxx S. Lxxxxxxx, the battalion executive officer and Lieutenant Colonel Rxxxxx L. Axxxx.  He believes the Board will find that MAJ Txxxxx's OER is in total contrast to what all of his other superiors have written about his performance.

   e.  In a letter, dated 30 September 2013, MAJ Kxxxx rendered statements about his performance and what he saw in MAJ Txxxxx's performance both before and after this OER from MAJ Txxxxx.  In the 6 months that he was responsible for the Dau Tieng convoys, the enemy never launched a successful attack/ambush on those convoys.  Contingency plans had been made to defend, as well as to evacuate men and equipment in the event of an attack.  Thankfully, these plans never had to be put in motion.

   f.  This cannot be said for convoys that were under MAJ Txxxxx's control.  It is important to note that during his tenure as the Division Transportation Officer (DTO) (Forward), MAJ Txxxxx never once came to Dau Tieng to see the successful methods they were using to run and secure convoys.  MAJ Txxxxx did not want him to be brought down from Dau Tieng and resented his presence.  MAJ Txxxxx did all that he could to make his life miserable.  He went to the Division Support Command Executive Officer, LTC Axxxx, on two separate occasions and volunteered for any assignment in the Division.  LTC Axxxx denied his request for a transfer, but told him that he would speak with MAJ Txxxxx.  The misery continued until he left Cu Chi upon completion of his tour.

   g.  The 2nd Battalion (Mechanized), 22nd Infantry Regiment, was the primary security force for the convoys he oversaw while he was in Dau Tieng.  He had daily contact with this unit and traveled with them when he went on convoys.  The success in operating convoys in the most unsecure road network in the 25th Infantry Division was due, in great part, to the "Triple Deuce" security elements.  He was most fortunate to find himself working with officers and men who cared deeply about what they were doing and went to great lengths to see that convoys did not fall victim to enemy action.  He fell back in with the "Triple Deuce" in early 2000.  His involvement continues to this day.

   h.  He has been designated an Honorary Member of the 22nd Infantry Regiment by the Secretary of the Army, a position of trust that he holds.  None of this would be if he were the person that MAJ Txxxxx described.  He believes the evidence he had provided will bring the reader to the conclusion that he is and was not the officer that MAJ Txxxxx described in the 1969 OER.  He hopes the Board will grant his request to remove MAJ Txxxx's OER from his records.

   i.  During his conversations with MAJ (Retired) Jxxx H. Kxxxx, his company commander when he was assigned to the Provisional Company in Dau Tieng, Vietnam, he learned that MAJ Kxxxx submitted a request that he be awarded a Bronze Star Medal for his service.  

   j.  He also requests the Board honor MAJ Kxxxx's request and the recommendation submitted in 1968 for award of the Bronze Star Medal.

3.  The applicant provides copies of six OERs and a letter from MAJ (Retired) Kxxxx.

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 appointed in the U.S. Army Reserve (USAR), as a second lieutenant (2LT), on 9 February 1967, with prior enlisted service.  He was ordered to active duty and entered active duty on the same day.  

3.  His record contains and he provided copies of the following:

   a.  A Change of Duty OER, for the period 9 February through 23 April 1967, for his duties as a motor officer with an authorized grade of CPT.  He received ratings of "Above Average" and "Exemplary."  His rater commented, "[Applicant} was a most promising young officer and he had accomplished all tasks or duties given to him in a superior manner."  His indorser concurred with all comments of the rater.

   b.  An OER, for the period 24 April through 12 July 1967, for his duties as a motor officer with an authorized grade of CPT.  He received ratings of "Above Average" and "Exemplary."  His rater commented, "Once [Applicant] became acquainted with the battalion maintenance policies, he assumed complete control of the battalion maintenance and motor sections.  He needed little guidance or supervision and goes about his work in an exemplary manner."  His indorser concurred with all comments of the rater.

   c.  A Change of Rater OER, for the period 13 July through 28 September 1967, for his duties as a battery commander with an authorized grade of CPT.  He received ratings of "Above Average" and "Exemplary."  His rater commented, "As the Headquarters Battery Commander, [Applicant] was faced with responsibilities normally reserved for senior CPTs in the artillery.  He willingly accepted and discharged these responsibilities with the utmost efficiency."  His indorser commented, "[Applicant] performed his duties as the Headquarters Battery Commander in a manner far surpassing that to be expected of such a young, inexperienced officer."

   d.  A Permanent Change of Station (PCS) OER for the period 9 October 1967 through 21 January 1968, for his duties as the assistant S-4 with an authorized grade of CPT.  He received all ratings of "Exemplary."  His rater commented, "[Applicant] has performed his assigned duty as Assistant Brigade S-4 in an outstanding manner."  His indorser commented, "[Applicant's] performance of duty as Assistant Brigade S-4 had been outstanding during the reported period."

4.  He was promoted to first lieutenant (1LT) on 9 February 1968.  He served in Vietnam from 26 February 1968 through 29 January 1969.  

5.  His record also contains and he also provided copies of the following:

   a.  A Change of Duty OER, for the period 22 January through 8 September 1968, for his duties as a platoon leader with an authorized grade of 1LT.  He received ratings of "1 (Top)" and "2 (Second)."  His rater commented, "[Applicant] performed in an outstanding manner while under his command."  His indorser commented, "[Applicant] is an officer with energy, a quick mind, and potential."

   b.  A PCS OER (contested), for the period 9 September 1968 through 26 January 1969, for his duties as a movement control officer, with an authorized grade of CPT.  The OER shows in:
   
		(1)  Part IV (Personal Qualities) and in Part VI (Performance of Duty Factors), indicated on a scale from 1 to 5 (5 being the lowest), he received rankings of 1, 2, 4, and 5. 
		(2)  Part VIII (Promotion Potential) he was rated as "Do not promote at this time" by his rater and "Promote along with contemporaries" by his indorser.

		(3)  Part XI (Comments) his rater commented, "[Applicant's] willingness to accept responsibilities is negligible.  He accepted responsibilities only by direction and in most cases performed just enough to get by.  He was counseled on several occasions concerning his performance; however, no effort was ever made to improve.  His lack of interest and enthusiasm were the cause for the below average performance of his assigned duties.  In view of the foregoing, it was recommended that the officer not be promoted at this time nor be given a higher level of command."

		(4)  Part XI his indorser commented, "[Applicant] has performed his assigned duties in an acceptable manner.  He believes the demonstrated personal qualities and duty performance have been adversely affected by a severe personality difference and a communication problem between the rating [sic] and rated officers [sic].  He had personally counseled the applicant and observed some improvement in his performance and ability to satisfy his rating officer.  He believes this young officer has the potential to be a definite asset to the service, providing he receives firm and quality guidance in the future.  [Applicant] proved his ability to perform in a combat environment."

		(5)  Part XII (Over-All Value to the Service) he was ranked at 50 percent (%) by his rater and 75% by his indorser.

   c.  An Additional Information reference the OER, Part XI, wherein the rater commented:

		(1)  During the period covered in that report, [Applicant's] primary function was to supervise the Convoy Control Section.  In that capacity, he was responsible for the supervision of three enlisted personnel and the utilization of the road net within the 25th Infantry Division.

		(2)  On several occasions the Convoy Control Section was found not manned and the [Applicant] was not aware of the whereabouts of the enlisted personnel under his supervision.  On two separate occasions the security element was unable to conduct a communication check because the applicant failed to turn on his radio.  On one occasion a disabled vehicle remained in the vicinity of Cu Chi for approximately two days necessitating an additional security force to protect the equipment.  [Applicant] initiated the action to recover the vehicle, but he failed to follow-up to insure that the mission was accomplished.  On another occasion one stake and platform trailer loaded with ammunition remained in a Fire Support Base for a period of 8 days despite the fact that the [Applicant] was informed twice to get the trailer moved out of the area.

		(3)  [Applicant] consistently avoided participation in other tasks regardless of the simplicity.  On one occasion he was instructed to conduct an inspection of vehicles in the Convoy Marshaling Area to insure that vehicles did not depart Cu Chi Base Camp with flat tires, empty fuel tanks, insecure loads, etc.  Upon completion of the inspection, the [Applicant] stated that all vehicles were ready and no deficiencies were found.  However, a spot check by the rater was conducted on vehicles that the [Applicant] inspected and six vehicles were found with flat tires.  On several occasions the [Applicant] was instructed to supervise the daily motor stables of vehicles assigned to the section and in all cases [Applicant] was late or absent.

6.  His record is void of any evidence he submitted an appeal of the contested OER.

7.  He was honorably released from active duty on 9 February 1969 and was transferred to the USAR Control Group (Annual).  He was credited with completing 2 years and 1 day of net active service.  His DD Form 214 lists the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* two overseas service bars

8.  Item 21 (Awards and Decorations) of his DA Form 66 (Officer Qualification Record) lists all the awards listed on his DD Form 214 ending on 9 February 1969 and includes the Army Good Conduct Medal (1st Award).

9.  His record further contains the following:

   a.  A DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge), issued on 14 October 1969, which amended his 1969 DD Form 214 by adding the Army Commendation Medal with 1st Oak Leaf Cluster.

   b.  A DD Form 215, issued on 24 February 2004, which amended his 1969 DD Form 214 by adding the Army Commendation Medal with 1st Oak Leaf Cluster, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and his dates of service in Vietnam.
10.  He also provided a copy of a letter, dated 30 September 2013, wherein MAJ (Retired) Kxxxx stated:

   a.  After thoroughly reviewing the input provided by himself as a unit commander and a rater of the applicant, he has concluded that the rater's adverse comments (on the contested OER) relating to the applicant's personal characteristics, professional performance, and behaviors were without a basis in fact.

   b.  When the OER was written, he finds that five of them were in substantial agreement of their positive assessment of the applicant's demonstrated performance of combat duty, promotion potential, schooling potential, future assignment potential, professionalism, and judgment as demonstrated under adverse combat conditions for extended periods of time.

   c.  The applicant was a hard charger and an effective officer whether in his unit or in the service of the 25th Infantry Division Transportation Office.  The applicant's leadership training and his year with the 197th Infantry Brigade paralleled his own infantry training.

   d.  The applicant was his company’s motor officer for the unusually large and diverse fleet of vehicles.  The applicant was a definite asset to him when he was designated as the replacement commander for two prior 25th S&T Provisional company commanders and their first sergeant who were flagged and medically evacuated from the company and Vietnam in 1968.  

   e.  The applicant worked with him side-by-side when over 240 122 millimeter rockets and mortars rained on them one night.  Together they contained the fire, restored refueling service, assembled over 125 2.75 rockets for rearm point use, and restored their wire perimeter defense after the related North Vietnamese Army/Viet Cong night ground attack.  The applicant's contributions and leadership enabled his unit to be combat effective and responsive despite operational limitations.

   f.  Upon his departure, he recommended the applicant for a well-earned Bronze Star Medal.  It was, as was the practice, processed through the Division Support Command.  Subsequent research has revealed that MAJ Txxxxx inappropriately halted the applicant's award at the command even before the applicant was to be reassigned.  It is most unusual for mutually supporting command chains to obstruct formal recognition of a sister unit, but MAJ Txxxxx was not above that type of self-serving, destructive leadership behavior.  
   
   g.  He concluded that the applicant cannot and should not be rated and evaluated negatively for having to deal with a troubled and leadership-challenged DTO who withheld and misapplied resources from his Convoy Control Section for a year or more.  MAJ Txxxx'x evaluation should be deleted from the applicant's records for lack of accuracy, integrity, and objectivity.  MAJ Txxxxx's evaluation simply does not reflect the outstanding quality of service and professional behavior actually exhibited by the applicant in combat.

   h.  His requests approval and award of the Bronze Star Medal to the applicant for outstanding service to his unit and individuals supported by the 25th Infantry Division and 25th S&T Company.  He cannot thank the applicant today, but the Army can and should acknowledge the applicant's outstanding Vietnam combat service by approving and granting this modes award to the applicant.

11.  Army Regulation 623-105 (Officer Evaluation Reporting System (OERS)), in effect at the time, established the policies and procedures for the OERS.  The regulation stated in:

   a.  Paragraph 5-32 - an evaluation report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, was presumed to had been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rested with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcame the presumptions referred to above and that action to correct an apparent material error or inaccuracy was warranted.  

   b.  Paragraph 9-3 - because evaluation reports were used for personnel management decisions, it was important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passed, people forget and documents and key personnel were less available; consequently, preparation of a successful appeal became more difficult.  Normally, appeals would be considered regardless of the period of the report and a decision would be made in view of the regulation in effect at the time.  However, the likelihood of successfully appealing a report diminished as a rule with the passage of time.  Substantive appeals on reports rendered 5 or more years prior are particularly difficult to substantiate with credible existence.  Prompt submission was, therefore, recommended.  

12.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

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

14.  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.

15.  The requests, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command (AHRC), 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.  With respect to removal of the OER for the for the period 9 September 1968 through 26 January 1969 from the applicant's records, because of the passage of time he has not shown that this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

2.  The lapse of over 46 years between the time he was issued the contested OER and his application to this Board has made it difficult if not impossible for all the facts surrounding his case to be known.  An arbitrary ruling in his favor at this time, without knowing what his records would have shown, would cause prejudice to the Government.  Therefore, the doctrine of laches is invoked in his case.

3.  It is concluded the contested OER was processed and accepted for filing in his OMPF and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove/delete the contested report. 

4.  With respect to award of the Bronze Star Medal, while the available evidence is insufficient for awarding him the Bronze Star Medal, this in no way affects his  right to pursue his claim for this award by submitting a request through a Member of Congress under the provisions of 10 USC 1130.

5.  In view of the foregoing, there is no basis for granting him relief.

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)                                         AR20130020481





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ABCMR Record of Proceedings (cont)                                         AR20130020481



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