IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140007042 


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, through his Member of Congress, correction of his military records as follows: 

* advancement to the rank/grade of sergeant major (SGM)/E-9
* award of the Air Medal
* award of the Bronze Star Medal with "V" Device

2.  The applicant states in his letter to the Member of Congress: 

* he served in Vietnam and while there, he believes he was treated badly and unfairly; he served in Vietnam for 365 days and came back with only an Army Commendation Medal 
* he was chosen as a co-pilot and logged in some 22 combat flying hours;  he flew a number of different missions, most over areas of active combat
* he was denied the Air Medal because an enemy attack had caused most of the records to be destroyed 
* he was also recommended for the Bronze Star Medal and the sergeant who was supposed to do the paperwork had returned to the States
* he was in an administrative unit that came under attack from mortars, rockets, and small arms fire
* while serving as an Army Career Counselor at Fort Campbell, he was advanced to master sergeant (MSG)/E-8
* he took a job as a recruiting company first sergeant (1SG) and he was laterally appointed to 1SG
* his unit commander did not report to the company (due an injury), so he (the applicant) became the area commander
* although he served as an area commander, he was not treated the same; he was not invited to any of their briefings/meetings
* he was released from the unit when his spouse suffered a medical illness and he was told to return when the situation resolved
* he returned a few days later but was informed he was no longer the unit 1SG and that his rank had changed to MSG and that he would be reassigned to Germany
* when he returned to the unit to make further arrangements for family travel, he was told his wife could not go with him to Germany and that he would be assigned to a position that already had a MSG in it
* when he asked to be relieved from this assignment, he was told to go to Germany or retire 
* he feels he was pushed out of the Army after years of honorable service; his ceremony consisted of being handed his orders 
* several weeks later, he contacted the Army for some records and he was told he had been selected for advancement to SGM but would not be advanced because he retired
* it is noted that when he was on active duty, he did perform duties of acting SGM on several occasions

3.  The applicant does not provide any evidence. 

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.  With respect to the Air Medal and the Bronze Star Medal with "V" Device, based upon his application, the evidence of record, and accompanying supporting documents the applicant submitted, it does not appear that he was recommended for or awarded the Air Medal and the Bronze Star Medal with "V" Device.  As such, his request to this Board is premature: 
	a.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her.  There is no evidence that the applicant has submitted a request to the U.S. Army Human Resources Command (HRC) and was denied relief. 

	b.  Pursuant to Title 10, USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. 

	c.  Title 10 USC 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10 USC 1130, the applicant must submit a DA Form 638 (Recommendation for Award).  The DA Form 638 should clearly identify the applicant's unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which the member is requesting recognition must accompany the DA Form 638.  In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	d.  Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.  Therefore, the applicant must submit his request through a Member of Congress who will send it to HRC, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	e.  Because the applicant has not submitted his request in accordance with Title 10, USC, section 1130, and has been denied relief, his request pertaining to awards of the Air Medal and the Bronze Star Medal with "V" Device to this Board is premature and this issue will not be discussed further in these Proceedings. 

3.  Having had prior service, the applicant reenlisted in the Regular Army (RA) on 26 April 1956.  He held military occupational specialty (MOS) 192.60 (Air Defense Artillery Automated Weapons Crewman).

4.  He served in Japan from December 1954 to November 1957.  He was honorably released from active duty on 24 April 1959.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that captured this period of active service. 

5.  He again enlisted in the RA on 15 June 1959 and he held MOS 075.60 (Recruiter and Career Counselor).  He was honorably discharged in the rank/grade of staff sergeant/E-6 on 14 June 1965 for immediate reenlistment.  He was issued a DD Form 214 that captured this period of active service.

6.  He reenlisted in the RA on 15 June 1965 and he held MOS 00E (Recruiter and Career Counselor).  He served in Vietnam from December 1966 to December 1967.  He was honorably discharged in the rank/grade of sergeant first class (SFC)/E-7 on 11 April 1971 for immediate reenlistment.  He was issued a DD Form 214 that captured this period of active service.

7.  He reenlisted in the RA on 12 April 1971 and he held MOS 71L (Administrative Specialist).  He was initially assigned to the U.S. Army Recruiting Station, Syracuse, NY.

8.  He was reassigned to the 159th Aviation Battalion, Fort Campbell, KY in or around September 1972.  He performed duties of Career Counselor.  He was transferred to Headquarters and Headquarters Battery, Division Artillery in or around May 1973 and also performed duties of Career Counselor. 

9.  He was advanced to MSG/E-8 on 15 September 1973.  He performed duties of Area Supervisor, U.S. Army Recruiting Station, Cleveland, OH with duty in Akron, OH. 

10.  He was honorably discharged in the rank/grade of MSG/E-8 on 11 April 1974 for immediate reenlistment.  He was issued a DD Form 214 that captured his period of active service.

11.  He reenlisted in the RA on 12 April 1974 and he held MOS 71L.  He was placed on assignment orders to Germany with a report date of July 1974.

12.  On 19 July 1974, he submitted a request for voluntary retirement.  His request was approved.  Accordingly, he was issued orders attaching him to Fort Campbell, KY for outprocessing.

13.  On 12 August 1974, Headquarters, 101st Airborne Division, Fort Campbell published orders placing on the Retired List in his retired rank/grade of MSG/E-8 effective 1 September 1974.
14.  He retired on 31 August 1974 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 effective 1 September 1974.

15.  There is no indication in his records that confirms he was selected for promotion to SGM or to the Sergeants Major Course.  Likewise, there are no orders in his records confirming such promotion or attendance at the Sergeants Major Course.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reduction), currently in effect, prescribes the enlisted promotions and reductions function of the military personnel system.  Promotion to SFC/E-7, MSG/E-8, and SGM/E-9 is centralized at the Department of the Army level.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was advanced to the rank/grade of MSG/E-8 on 15 September 1973.  There is no evidence in his records and he provides none that shows he was selected for promotion to SGM, successfully attended the Sergeants Major Course, was advanced to SGM according to the promotion board criteria (sequence number and/or date of rank) or fulfilled the required service remaining requirements for promotion to SGM. 

2.  His honorable service is not in question.  Likewise, his performance as an acting SGM (albeit not supported by any evidence) is noted.  However, the fact remains that he was never selected for promotion.  Promotion to senior noncommissioned officer ranks is based on performance, merit, and potential, not time in service and not on speculations. 

3.  The applicant was simply never selected for promotion to SGM.  After a comprehensive review of the evidence in his official record, his contention and argument, and other than his dissatisfaction, he failed to show, by clear and convincing evidence, that his records contain a material error, inaccuracy, injustice, and/or even inequity.  Therefore, he is not entitled to the requested 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)                                         AR20140007042





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007042



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1