IN THE CASE OF:	   

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20150010420 


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, in effect, correction of his records to show he was promoted to captain (CPT)/pay grade O-3 and awarded the Legion of Merit, the Bronze Star Medal, and the Order of Merit.

2.  The applicant states that he was ordered to active duty (OAD) and assigned as the personnel officer of Headquarters, 1st Military Intelligence (MI) Battalion, Fort Bragg, NC.  It was a job he was not trained for and he experienced insult and prejudice from one particular colonel.

   a.  He states that the anti-Semitic colonel fraudulently misrepresented the applicant's service by stating the applicant bounced checks and that he signed in while still on leave.  The applicant states the issue concerning the checks was due to bank error because he had legally changed his name.  His duty status was based on the fact that he had spent two weeks of compensatory time over Christmas as the duty officer so his fellow Christian officers could be home with their families.  He asserts all records of this must be expunged from his military service records because it tarnishes his good name and exemplary record of service.  He adds that his strong expression of dissatisfaction with his situation in the unit resulted in his reassignment.

   b.  He served in the Republic of Vietnam (RVN) under the operational control of Headquarters, U.S. Military Advisory Command, Vietnam (MACV).  He was subsequently assigned to Headquarters and Headquarters Company (HHC), 344th U.S. Army Security Agency (USASA) Battalion (BN).

   c.  He states he processed intelligence that saved approximately 300 lives at the Parrot's Beak, Cambodia, Michelin Plantation (rubber farm), to effect a strategic withdrawal and furnished it to General (GEN) W___ W____ and Admiral M____, Commander in Chief, Pacific.  He also authored Viet Cong map symbols that were printed in Japan, classified Top Secret, and distributed to all G2 and S2 offices.  In addition, he was the chief briefer for the General Staff.

   d.  He lists accomplishments and achievements from two of his officer efficiency reports (OERs) with "Thru" dates of 2 July 1966 and 31 January 1968.

   e.  He was honored with the Joint Service Commendation Medal by Colonel R___ C____, U.S. Marine Corps, and GEN W___ W____, MACV.  He was promised award of the Legion of Merit, an award usually reserved for field grade officers.  He adds that the general officers had more important details to attend to and the award recommendation may not have been submitted.  He was also promised the Bronze Star Medal and the Order of Merit.

   f.  He states that upon returning to the continental United States (CONUS) he was spit on for defending his uniform.

   g. He was then assigned to the 344th USASA BN (cryptographic unit) in charge of Russian language translation and instruction.

   h.  He was recommended for promotion to CPT and he was supposed to be promoted to CPT both while serving on active duty and while serving in the 
U.S. Army Reserve (USAR).  He requested release from military service when he realized that promotion to CPT and award of the Legion of Merit were not forthcoming.

   i.  The lectures he gives on military intelligence in Vietnam and the Civil War at the Battle of Gettysburg lend support for award of the Legion of Merit.

   j.  The applicant requests, in effect, a personal appearance board (i.e., before a U.S. Army MI general officer) for a lecture the applicant will give on the circumstances and issues surrounding his case.  If his application is approved, he also requests the venue of his speech be covered by the media.

   k.  He lists as enclosures to his application the following documents –

* DA Form 78 (Recommendation for Promotion of Officer)
* two DA Forms 67-5 (U.S. Army Officer Efficiency Reports)
* Joint Service Commendation Medal order, dated 1 July 1968
3.  The applicant provided a self-authored statement (summarized above); however, he did not provide any other documents in support of his application.

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 as a commissioned officer in the USAR, in the rank of second lieutenant (2LT), Army Intelligence Service (AIS), on 11 June 1964.

3.  He was OAD on 12 August 1964 for a period of 2 years.  His Army of the United States (AUS) date of rank (DOR) for 2LT was established as 12 August 1964.

4.  On 2 April 1965, the applicant's name in his military service records was officially changed from Wilbur P-------- to Wilbur Wendell P----- based on a court-approved legal name change.

5.  The applicant's DA Form 66 (Officer Qualification Record) shows in –

* item 12 (Appointments – Date of) –

* 2LT USAR:  11 June 1964, DOR:  12 August 1964
* 1LT (First Lieutenant) AUS:  19 April 1966, DOR:  19 April 1966

* item 31 (Foreign Service), he served in Vietnam from 12 November 1965 through 31 July 1966
* item 38 (Record of Assignments) – 

* Commissioned AIS, USAR from Senior Reserve Officer Training Corps, 11 June 1964
* Commissioned Officer, USAR not on active duty through 11 August 1964
* Air Reconnaissance Liaison Officer, Detachment D, 1st MI BN (Aerial Reconnaissance Support), Fort Bragg, NC, from 12 August 1964 through 11 October 1964
* Personnel Officer, Headquarters, 1st MI BN, Fort Bragg, NC, from 
12 October 1964 through 18 February 1965
* Image Interpreter, Detachment C, 1st MI BN, Fort Bragg, NC, from 
19 February 1965 through 31 March 1965
* Assistant Intelligence Editorial Officer, HHC, 519th MI BN (Field A), Fort Bragg, NC, from 1 April 1965 through 17 September 1965
* Intelligence Staff Officer, Tactical Intelligence Detachment (TI Det), (Composite (Comp)), 519th MI BN (Field A), Fort Bragg, NC, from 
18 September 1965 through 11 November 1965
* Intelligence Staff Officer, TI Det (Comp), 519th MI BN (Field A), Vietnam, from 12 November 1965 through 30 July 1966
* Casual enroute to CONUS – Transfer Station, U.S. Army Personnel Center, Oakland, CA, from 31 July 1966 through 10 August 1966
* Released from Active Duty (REFRAD), 11 August 1966

* item 21 (Awards and Decorations) – 

* Vietnam Service Medal (VSM)
* National Defense Service Medal (NDSM)
* 2 Overseas Service Bars
* RVN Campaign Medal with Device (1960)

6.  A DA Form 67-5 for the period 19 February 1965 through 17 September 1965 pertaining to the applicant for duties performed as Assistant Intelligence Editorial Officer, HHC, 519th MI BN (Field A), Fort Bragg, NC, shows the rater and indorser provided favorable comments pertaining to his duty performance. However, they both noted that he did not coordinate projects with others nor did he readily accept counseling.  The reviewer, Lieutenant Colonel (LTC) L___ C. H____, Commander, 519th MI BN (Field A), provided comments that, in pertinent part, explained how the applicant "influenced another officer to sign him in on the 'officer register.'  This was done via a long distance phone call.  In effect [the applicant] was 'signed in' while at the same time being on leave."

7.  A DA Form 67-5 for the period 18 September 1965 through 16 January 1966 pertaining to the applicant for duties performed as Intelligence Staff Officer, 
TI Det (Comp), 519th MI BN (Field A), MACV, shows the rater and indorser provided favorable comments pertaining to his duty performance.  However, they both noted that he did not always fulfill work requirements and he was careless as to his personal affairs.  The indorser, LTC A___ L. B____, Commander, TI Det (Comp), also noted, in pertinent part, that the applicant "failed to pay just financial obligations within the prescribed period."

8.  A DA Form 78, dated 5 February 1966, shows LTC L___ C. H____ did not recommend the applicant for promotion to 1LT (O-2) in the AUS.  He noted that he found it necessary to counsel the applicant on three separate occasions in order to impart a sense of discipline to him.  The counseling focused on three topics:  performing assigned duties without complaining, influencing an officer to sign him in for duty when he was not present, and cashing checks that were returned due to insufficient funds.

9.  A DA Form 78, dated 17 April 1966, shows LTC D___ G. M____, Deputy Director, Combined Intelligence Center, Vietnam, Office of the Assistant Chief of Staff, J2, MACV, recommended the applicant for promotion to 1LT in the AUS.

10.  A DA Form 67-5 for the period 17 January 1966 through 2 July 1966 pertaining to the applicant for duties performed as Intelligence Staff Officer, 
TI Det (Comp), 519th MI BN (Field A), MACV, shows the rater and indorser provided favorable comments pertaining to the applicant's duty performance.  The indorser, Major R___ L. W____, Chief Operations Branch, Combined Intelligence Center, MACV J2, noted his performance of duties was above that normally expected from an officer of his grade and experience. 

11.  The applicant was promoted to 1LT in the AUS on 19 April 1966 and promoted to 1LT in the USAR effective 10 June 1966.

12.  Headquarters, U.S. MACV, General Orders Number 1973, dated 1 July 1968, awarded the applicant the Joint Service Commendation Medal for meritorious service in a joint command from December 1965 to August 1966.

13.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably REFRAD on 11 August 1966 and transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation (terminating on 10 June 1970).  He had completed 2 years of net active service this period, 2 months and 1 day of other service, and 8 months and 9 days of foreign service.  It also shows in –

* item 3a (Grade, Rate or Rank):  1LT (O-2)
* item 3b (DOR):  19 April 1966


* item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) –

* VSM
* NDSM
* 2 Overseas Service Bars
* RVN Campaign Medal with Device (1960)

14.  A DA Form 67-5 for the period 1 December 1967 through 31 January 1968 pertaining to the applicant for duties performed as Reserve Duty Training – Battalion S2, HHC, 344th USASA BN, Horsham, PA, shows the rater and indorser provided favorable comments pertaining to the applicant's duty performance.  The indorser, Major J___ R. S____, Commander, 344th USASA BN, noted that he should be promoted as soon as possible.

15.  Office of The Adjutant General, U.S. Army Administration Center, St. Louis, MO, Letter Order, dated 16 September 1970, subject:  Discharge from USAR, honorably discharged the applicant from the USAR Ready Reserve, in the rank of 1LT, effective 31 May 1970, based on resignation.

16.  A review of the applicant's military personnel records failed to reveal evidence of –

* any adverse or derogatory information related to insulting/anti-Semitic comments by his raters/indorsers/reviewers/commanders
* an erroneously reported/charged period of leave
* being officially recommended for or –

* promoted to CPT
* awarded the –

* Legion of Merit
* Bronze Star Medal
* Order of Merit

* award of any individual foreign decoration

17.  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, Awards and Decorations Branch, revealed orders for the Joint Service Commendation Medal, but failed to reveal any additional individual award orders pertaining to the applicant.
18.  Army Regulation 624-100 (Promotions, Demotions, and Reductions – Promotion of Commissioned Officers and Warrant Officers on Active Duty), in effect at the time, prescribes the policies and procedures for temporary promotion in the AUS of commissioned officers and warrant officers on active duty, and for the promotion of Regular Army officers in their permanent grades.
Section III (Temporary Promotion to Colonel, Lieutenant Colonel, Major, Captain, and to Chief Warrant Officer Grades W-4 and W-3) shows in:

   a.  paragraph 10 (Zones of consideration), Headquarters, Department of the Army (HQDA) will announce the range of dates of rank constituting the zone of consideration for each grade; and

   b.  paragraph 13 (Selections), that the selection of officers for promotion will be made by selection boards at HQDA.

19.  Army Regulation 135-155 (Reserve Components – Promotion of Commissioned Officers, Other Than General Officers), in effect at the time, prescribes the policies and procedures for promoting commissioned officers in the Reserve Components of the Army below the grade of general officer.  Section I (General), paragraph 11 (Eligibility for promotion), shows under mandatory consideration for promotion to CPT a minimum of 4 years' time-in-grade (TIG) as 1LT and 6 years' time-in-service (TIS) is required.

20.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  Department of the Army General Orders Number 8 (1974) announced   award of the RVN Gallantry Cross with Palm Unit Citation to Headquarters, 
U.S. Military Assistance Command and its subordinate units during the period 
8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

21.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  The VSM is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  A bronze service star will be awarded for wear on the VSM for participation in each credited campaign.

	b.  Appendix B contains a list of Vietnam Conflict campaigns.  During the applicant's service in Vietnam, participation credit was awarded for the following three campaigns –

* Vietnam Defense Campaign (8 March - 24 December 1965)
* Vietnam Counteroffensive (25 December 1965 - 30 June 1966)
* Vietnam Counteroffensive Phase II (1 July 1966 - 31 May 1967)

	c.  The Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty, or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.

	d.  The Bronze Star Medal is awarded in time of war for heroism and for 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.	

	e.  For with all personal decorations (e.g., the Legion of Merit, the Bronze Star Medal, etc.), formal recommendations, approval through the chain of command, and announcement in orders are required.

	f.  A review of the regulation failed to reveal the Order of Merit as an authorized U.S. military decoration.

   g.  Chapter 9 (Foreign and International Decorations and Awards to U.S. Army Personnel) outlines the policies pertaining to the eligibility of individuals to accept or wear foreign decorations tendered by foreign governments.
   
    	(1)  Paragraph 9-25 (Foreign decorations) shows that individual foreign decorations may be accepted if awarded in recognition of meeting the criteria, as established by the foreign government concerned, for the specific award.  Only those decorations that are awarded in recognition of military activities and by the military department of the host country are authorized for acceptance and permanent wear.

    	(2)  Appendix E (Foreign Decorations), Table E-1, lists foreign decorations approved for acceptance and wear.  It lists the Vietnamese Military Merit Medal.  (It does not list the Vietnamese Order of Merit.)

22.  Title 10, U.S. Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted or acted upon 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.

23.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, Soldier Programs and Services Division, 1600 Spearhead Division Avenue, Fort Knox, Kentucky  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  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 for researching and assembling supporting documentation rest with the applicant.

24.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

25.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 

   a.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.

   b.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he was promoted to CPT and awarded the Legion of Merit, the Bronze Star Medal, and the Order of Merit was carefully considered.

2.  The applicant's request for a personal appearance hearing was also considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and that cited as evidence by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  It is noted that the enclosures listed on the applicant's application to the Board were not provided.  However, the documents are filed in his military records; thus, they were reviewed and considered by the Board.

   a.  With respect to the issues the applicant raises concerning comments regarding personal check cashing and his leave status, there is no evidence of record that shows he appealed the DA Form 78 and/or the DA Form 67-5 (in which the information appears) as being unsubstantiated, irrelevant, untimely, or incomplete.

   b.  Moreover, he fails to provide sufficient evidence to show the information in the documents that are filed in his Official Military Personnel File is unfounded, in error, or unjust.

   c.  Therefore, there is an insufficient evidentiary basis for removing the documents from the applicant's military service records.

4.  Records show the applicant was appointed as a USAR officer in the rank of 2LT on 11 June 1964, he was OAD as a 2LT in the AUS on 12 August 1964, and his 2LT DORs were established as 11 June 1964 and 12 August 1964, respectively.

5.  He was promoted to 1LT in the AUS on 19 April 1966 and promoted to 1LT in the USAR on 10 June 1966.

6.  Promotion to CPT in the AUS was based on zones of consideration.  HQDA announced the range of DORs constituting the zones of consideration for promotion, and the selection of officers for promotion was accomplished by selection boards at HQDA.
   a.  At the time the applicant was REFRAD (on 11 August 1966) he had less than 4 months TIG as a 1LT AUS.

   b.  There is no evidence of record that shows he was recommended for promotion by a HQDA selection board or that he was promoted to CPT AUS.

7.  The evidence of record shows that consideration for promotion to CPT in the USAR required a minimum of 4 years TIG as 1LT and 6 years TIS.

   a.  At the time of the applicant's discharge from the USAR (on 31 May 1970) he had less than 4 years TIG and less than 6 years TIS (i.e., both TIG and TIS failed to meet the criteria by 10 days).

   b.  There is no evidence of record that shows he was recommended for promotion by a USAR selection board or that he was promoted to CPT USAR.

8.  He was honorably REFRAD on 11 August 1966 in the rank of 1LT and subsequently honorably discharged from the USAR on 31 May 1970 in the rank of 1LT.

   a. The comments by the raters and/or indorsers on the applicant's OERs recommending him for promotion to CPT are acknowledged.  However, the comments in OERs serve to provide HQDA selection boards the prospective judgment of supervisors and field commanders concerning the rated officer's potential for promotion (emphasis added).  The comments do not constitute a promise of, or selection for, promotion to the next higher grade.

   b.  Therefore, in view of the foregoing, there is no basis for correcting the applicant's records to show he was promoted to CPT (O-3).

9.  General orders awarded the applicant the Joint Service Commendation Medal for meritorious service from December 1965 to August 1966.

10.  A personal decoration requires a formal recommendation, approval through the chain of command, and announcement in orders.  A careful review of the evidence of record fails to show that he was recommended for or awarded the Legion of Merit, the Bronze Star Medal, the Vietnamese Order of Merit, or the Vietnamese Military Merit Medal.  Therefore, there is an insufficient evidentiary basis for correcting the applicant's military service records to show any of these awards.


11.  While the available evidence is insufficient for correcting the applicant's records to show award of the Legion of Merit or the Bronze Star Medal, this in no way affects his right to pursue his claim(s) for the award(s) by submitting his request(s) through his Member of Congress under the provisions of 10 USC 1130.

12.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the requested relief.

13.  Evidence shows that the applicant's records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.


2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by:

   a.  deleting from item 26 of his DD Form 214 the "Vietnam Service Medal" and

   b.  adding the following awards to item 26 of his DD Form 214 –

* Joint Service Commendation Medal
* Vietnam Service Medal with 3 Bronze Service Stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation



      ___________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)                                         AR20150010420



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ABCMR Record of Proceedings (cont)                                         AR20150010420



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