IN THE CASE OF:	   

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130020761 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show:

* his first name is spelled as “Malcolm”
* that his rank and pay grade was staff sergeant (SSG)/E-6 
* award of the Bronze Star Medal (BSM) with “V” Device 

2.  The applicant states that his DD Form 214 incorrectly reflects his first name is “Malcom,” that his rank and pay grade was sergeant (SGT)/E-5, and it does not reflect award of the BSM with “V” Device.  He also states the State of Georgia is stating that he is an illegal alien; however, he has been paying taxes and desires all documents in his records be corrected to show the spelling of his first name 
as “Malcolm”.   

3.  The applicant provides a copy of his DD Form 214, orders awarding him the BSM with ”V” Device, promotion orders to pay grade E-6, and a letter from the Social Security Administration.

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 10 May 1968 and at the time of his induction he spelled his first name as “Malcom” and signed it the same way.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training as a field artillery crewman at Fort Sill, Oklahoma before being transferred to Vietnam on 30 September 1968.

3.  He was assigned to A Battery, 2nd Battalion, 319th Artillery Regiment and on 10 September 1969 he was promoted to the rank of SSG/E-6.

4.  On 23 July 1969, General Orders Number 9425, issued by Headquarters, 101st Airborne Division awarded him the BSM for meritorious service.

5.  On 24 October 1969, General Orders Number 13208, issued by Headquarters, 101st Airborne Division awarded him the BSM with “V” Device for heroism on 9 June 1969.

6.  He served in five campaigns and departed Vietnam on 12 December 1969. He was transferred to Fort Lewis, Washington where he was honorably released from active duty (REFRAD) that date as an overseas returnee.  He had served 
1 year, 7 months and 3 days of active service and the DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, BSM and the Army Commendation Medal.  It also shows that his first name was spelled “Malcom,” and his rank and pay grade are listed as SGT/E-5.  He signed his DD Form 214 using the spelling contained on the DD Form 214.

7.  A review of his official records shows he used and signed his first name as it is reflected on his DD Form 214 during his entire period of service.  It also shows that he had “excellent” conduct and efficiency ratings throughout his service and his record is void of derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM) (1st Award).

8.  Army Regulation 600-8-22 (Military Awards) states the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows his unit was awarded the Presidential Unit Citation (PUC), Meritorious Unit Commendation (MUC), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.  

10.  Army Regulation 600-8-22 states a bronze service star, based on qualifying service for each campaign listed in appendix B will be worn on the appropriate service medal.  A silver service star is worn in lieu of five bronze service stars.

11.  Army Regulation 635-5 (Separation Documents) at the time served as the authority for the preparation of the DD Form 214.  It provided that the DD Form 214 would be prepared to reflect information as it existed in the official records at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to the rank/pay grade of SSG/E-6 on 
10 September 1969 and is entitled to have that rank/pay grade entered on his DD Form 214.

2.  The applicant was also awarded the BSM and the BSM with ”V” Device and he is entitled to have those awards added to his DD Form 214.

3.  After carefully examining the applicant’s record of service, it appears that he should have received the AGCM (1st Award) for his service from 10 May 1968 through 12 December 1969.  This conclusion is based on the fact that the record is void of any derogatory information which would preclude the applicant from being awarded the AGCM (1st Award) and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving this award.

4.  The evidence suggests that the applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of his unit commanders.  Therefore, in the interest of justice, this error should be corrected and the applicant should be awarded the AGCM (1st Award) at this time. 

5.  The applicant served in five campaigns and thus is entitled to wear one silver  service star on his already-awarded Vietnam Service Medal and to have them added to his DD Form 214.
6.  Additionally, the applicant’s unit was awarded the PUC, MUC, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.  Accordingly, he is entitled to have those awards added to his DD Form 214 at this time.

7.  However, the applicant’s contention that his first name is spelled incorrectly in his records appears to lack merit.  The applicant’s official records show that he served his entire period of service with his name spelled as it is listed on his 
DD Form 214.

8.  In addition, for historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  Accordingly, there is no basis for granting the applicant's requested relief.

9.  The applicant is advised that a copy of this decisional document will be filed in his Official Military Personnel File.  This should serve to clarify any questions or confusion regarding the difference in the name recorded in his military record and to satisfy his desire to have it documented in his record.

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:

* Deleting the awards of the VSM and BSM from his DD Form 214
* Awarding him the AGCM (1st Award) for the period 10 May 1968 through 12 December 1969
* Adding the Vietnam Service Medal with one silver service star, BSM (2nd Award) and with “V” Device, AGCM (1st Award), PUC, MUC, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his DD Form 214

* Amending his DD Form 214 to show his rank/grade as SSG/E6

2.  The Board further determined that 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 changing the spelling of his first name on his DD Form 214.

3.  The Board wants the applicant and all others to know the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _____________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)                                         AR20130020761





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ABCMR Record of Proceedings (cont)                                         AR20130020761



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