IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140009342 


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 record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his correct date of birth (DOB), his rank as sergeant (SGT/E-5), and to add the Combat Infantryman Badge (CIB) and Army Good Conduct Medal (AGCM).

2.  The applicant states he provides the orders and paperwork to show his entitlement to the request corrections not currently shown on his DD Form 214.

3.  The applicant provides:

* AGCM Order
* Army Discharge Review Board letter dated 4 March 2014
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214
* CIB Order
* Appointment Order
* Birth Certificate
* Social Security Card

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 12 August 1969.  He was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  His DA Form 20 (Enlisted Qualification Record) shows he completed a Republic of Vietnam (RVN) tour from 28 January to 20 May 1970.  He served with the Company E, 2nd Battalion, 60th Infantry Regiment.

4.  The applicant's official military personnel file (OMPF) includes the following orders:

* Headquarters, 3rd Brigade, 9th Infantry Division, Special Orders (SO)
Number (#) 116, dated 26 April 1970, which announced his award of the CIB
* Company B, 5th Battalion, 31st Infantry, Unit Orders #28, dated 7 July 1971, which announced his appointment to the acting noncommissioned  officer rank of SGT
* Headquarters, 197th Infantry Brigade, General Order #165, dated 14 July 1971, which announced his award of the AGCM
* Headquarters, United States Army Infantry Center, SO #222, dated 10 August 1971, ordered the applicant's release from active duty in the rank of specialist (SP4/E-4) on 11 August 1971

5.  On 11 August 1971, the FSM was honorably released from active duty (REFRAD) after completing 2 years of creditable active service.  His DD Form 214 includes the following entries in the items indicated:

   a.  item 5a (Grade, Rate or Rank) – "SP4"
   
   b.  item 5b (Pay Grade) – "E4"
   
   c.  item 9 (DOB) – "8 Jul 49"
   
   d.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following awards:

* Bronze Star Medal
* Purple Heart
* Army Commendation Medal with "V" Device and Oak Leaf Cluster
* National Defense Service Medal
* Vietnam Service Medal with bronze service star
* RVN Campaign Medal with Device 1960
* Expert Marksmanship Qualification Badge with M-14 Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar
* one Overseas Service Bar

6.  On 27 March 2008, the applicant petitioned the ABCMR to correct his DOB to show 4 July 1949 instead of 8 July 1949.  On 8 October 2008, the Acting Chief, Army Review Boards Agency, Support Division-St. Louis, issued a DD Form 215 (Correction to the DD Form 214) correcting the applicant's DOB as he requested.

7.  Army Regulation 635-5 (Separation Documents), as then in effect, prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also established standardized policy for preparing and distributing the DD Form 214.  It stated that the grade held by the individual at the time of separation would be entered on the separation document.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.

	a.  Paragraph 2-13 contains guidance on award of the VSM and states a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.

	b.  Table B-1 contains a list of campaigns and shows that during the applicant's service in the RVN, participation credit was awarded for the following campaigns:

* Vietnam Winter-Spring 1970
* Sanctuary Counteroffensive

9.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant's tenure of assignment in the RVN his unit (2nd Battalion, 60th Infantry Regiment) earned the RVN Gallantry Cross with Palm Unit Citation (RVNGC) and the RVN Civil Actions Honor Medal First Class Unit Citation (RVNCAUC).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record and DD Form 214 should be corrected to show his correct DOB, rank, and to add the CIB and AGCM.  There is sufficient evidence to support granting a portion of the requested relief.

2.  The applicant's OMPF contains official orders announcing his award of the AGCM and CIB and these awards are not currently listed on his DD Form 214.  Therefore, they should be added to item 24 of his DD Form 214.

3.  In addition, the evidence of record shows that based on his service and campaign participation in the RVN he is authorized the RVNGC, RVNCAUC, and two bronze service stars to be affixed to his already-awarded VSM.  Thus, it would be appropriate to add these awards to his DD Form 214.

4.  The evidence in this case includes a DD Form 215 dated 8 October 2008, which confirms the Acting Chief, the ARBA-Support Division-St. Louis, previously took action and corrected the applicant's DOB as he requested at that time.  Accordingly, no additional relief is warranted on this portion of the applicant's claim.  A copy of the DD Form 215 will be provided to him.

5.  Finally, the evidence of record, while it shows the applicant was appointed to the "acting" noncommissioned officer rank of SGT, this action was only acting and not considered a permanent promotion.  Official orders included in the applicant's OMPF confirm he was REFRAD in the rank of SP4/E-4 and this is the rank listed on his DD Form 214.  Therefore, his DD Form 214 appropriately lists the rank he held upon his REFRAD and there is no basis upon which to grant this portion of his requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  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: 

	a.  amending his DD Form 214 by deleting the Vietnam Service Medal with bronze service star and adding the following awards:

* Army Good Conduct Medal
* Vietnam Service Medal with 2 bronze service stars
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

b.  issuing him a corrected document to reflect these awards.

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 his date of birth and rank.




      ___________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)                                         AR20140009342





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ABCMR Record of Proceedings (cont)                                         AR20140009342



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