IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150006157 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his birth year as 1943, add the Legion of Merit, and to show award of a third vice fourth Meritorious Service Medal. 2. The applicant states his DD Form 214 at block 5 (Date of Birth) shows a birth year of 1954 when it should be 1943. Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) omits his end of service award of the Legion of Merit, and has an improper entry showing a fourth award of the Meritorious Service Medal. The fourth Meritorious Service Medal was upgraded to the Legion of Merit and presented to him after his retirement. 3. The applicant provides copies of his DD Form 214, birth certificate, a Legion of Merit Certificate with orders, and an award ceremony photograph. 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 served on active duty from 29 May 1965 through 31 August 1985, attaining the rank of lieutenant colonel. 3. All documents of record, except the DD Form 214, that contain a date of birth show a birth year of 1943. 4. Headquarters, U.S. Army Combined Arms Center Permanent Orders 50-1, dated 11 July 1985, awarded him the Meritorious Service Medal with third oak leaf cluster (4th Award) for meritorious service from 10 November 1984 through 31 August 1985. 5. Headquarters, U.S. Army Training and Doctrine Command Permanent Orders 107-6, dated 10 September 1985, awarded him the Legion of Merit for meritorious service from 31 August 1975 through 31 August 1985. As this is for a 10-year period, it is presumed to be his retirement award per regulatory guidance. A review of this order does not show any interim award orders were revoked. 6. His DA Form 66 (Officer Qualification Record), for the period 29 May 1965 through 30 June 1972, shows: a. service in Vietnam from 25 May 1968 through 24 May 1969 with the U.S. Military Assistance Command, Vietnam; b. service in Vietnam during four campaign periods; c. his authorized awards are listed as the – * Expert Infantryman Badge * Parachutist Badge * National Defense Service Medal * Expert Marksmanship Qualification Badge with Pistol Bar * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Parachutist Badge * Armed Forces Expeditionary Medal (Korea) * Republic of Vietnam Campaign Medal with Device (1960) * Air Medal * Bronze Star Medal * Republic of Vietnam Armed Forces Honor Medal First Class * Republic of Vietnam Gallantry Cross with Silver Star * Meritorious Service Medal 7. His DA Form 2-1 (Personnel Qualification Record – Part II) covering the period from May 1975 through October 1983, lists his awards as – * Expert Infantryman Badge * Parachutist Badge * National Defense Service Medal * Expert Marksmanship Qualification Badge with Pistol Bar * Army Commendation Medal * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Parachutist Badge * Armed Forces Expeditionary Medal (Korea) * Republic of Vietnam Campaign Medal with Device (1960) * Air Medal * Bronze Star Medal * Meritorious Service Medal * Republic of Vietnam Armed Forces Honor Medal First Class * Republic of Vietnam Gallantry Cross with Silver Star * Republic of Korea Presidential Unit Citation * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Meritorious Service Medal with 1st Oak Leaf Cluster * Army Service Ribbon * Overseas Service Ribbon * Army Achievement Medal 8. His Officer Record Brief dated August 1985 lists his awards as – * Bronze Star Medal * Meritorious Service Medal (4th award) * Air Medal * Army Commendation Medal * Army Achievement Medal * National Defense Service Medal * Vietnam Service Medal * Armed Forces Expeditionary Medal * Army Service Ribbon * Overseas Service Ribbon * Republic of Korea Presidential Unit Citation * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Infantryman Badge * Parachutist Badge 9. His 31 August 1985 DD Form 214 lists his awards as the – * Bronze Star Medal * Meritorious Service Medal (3rd Award) * Air Medal * Army Commendation Medal * Army Achievement Medal * National Defense Service Medal * Vietnam Service Medal with four bronze service stars * Armed Forces Expeditionary Medal * Army Service Ribbon * Overseas Service Ribbon * Republic of Korea Presidential Unit Citation * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Infantryman Badge * Parachutist Badge * Meritorious Service Medal (4th award) 10. The birth certificate provided shows a birth year of 1943. 11. U.S. Army Vietnam Regulation Number 672-2 (Foreign Awards and Decorations) provided for processing of foreign awards and decorations presented to individuals and units. This regulation, in pertinent part, governed award of the Republic of Vietnam Gallantry Cross as a personal decoration. This decoration is awarded to personnel who conducted themselves with heroic action and displayed deeds of valor while fighting the enemy. This decoration was awarded in four degrees: with Palm, with Gold Star, with Silver Star and with Bronze Star. Approval to accept and to wear a personal award of the Republic of Vietnam Gallantry Cross required approval by the Commanding General of United States Army Vietnam. 12. Army Regulation 672-5-1 (Military Awards) prescribed the policy, criteria, and administrative instructions concerning individual military awards. a. Upon retirement a Soldier will be considered for an appropriate decoration based on his grade, years of service, degree of responsibility and manner of performance. Meritorious service awards may include periods of service longer than that served in the recommending command. Retirement service awards should be limited to the last 10 years of service. Paragraph 1-20 prohibits duplicate awards for meritorious service or achievement involving the same period of time. However, retirement awards may be exempted from this restriction by commanders authorized to approve awards. b. To ensure a deserving act, achievement or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award. When a higher award is approved, the approving authority will revoke the interim award in the same order published for the higher award. DISCUSSION AND CONCLUSIONS: 1. With the exception of the DD Form 214, all of the applicant's records show his birth year as 1943. The entry of 1954 as a birth year on his DD Form 214 is clearly in error and should be corrected. 2. The applicant's award of the Legion of Merit was not finalized until after his DD Form 214 had been completed. It would be appropriate to add this award to his DD Form 214. 3. The applicant was authorized award of the Republic of Vietnam Gallantry Cross with Silver Star, as a personal award, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation as a unit citation. These are two different awards and both should be shown on the DD Form 214. Only the Republic of Vietnam Gallantry Cross with Palm Unit Citation was included on his DD Form 214; it is appropriate to also include the Republic of Vietnam Gallantry Cross with Silver Star. 4. The records show that the applicant was authorized a personal award of the Republic of Vietnam Armed Forces Honor Medal First Class and this award was omitted from his DD Form 214. 5. The applicant was authorized award of the Republic of Vietnam Parachutist Badge. This award was omitted from his DD Form 214 and it would be appropriate to correct the record by adding it to his DD Form 214. 6. On 11 July 1985, the applicant was awarded a fourth Meritorious Service Medal (Permanent Orders 50-1) for meritorious service for the period 10 November 1984 to 31 August 1985 by the U.S. Army Combined Arms Center. Post retirement on 10 September 1985, he was awarded a Legion of Merit for meritorious service for the 10-year period from 31 August 1975 to 31 August 1985 by the Commanding General, U.S. Army Training and Doctrine Command. A review of the Legion of Merit award order does not show Permanent Orders 50-1 was revoked. Since his fourth Meritorious Service Medal award order was not revoked upon award of the Legion of Merit, there is a presumption of administrative regularity that this award was for his service for the designated period of time and his Legion of Merit is his retirement award encompassing his last 10 years of service. Thus, there is no regulatory requirement to remove the fourth Meritorious Service Medal from the applicant’s DD Form 214. 7. In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below. 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: a. deleting the birth year 1954 from his 1985 DD Form 214 and adding the birth year 1943; and b. adding the following awards * Legion of Merit * Republic of Vietnam Gallantry Cross with Silver Star * Republic of Vietnam Armed Forces Honor Medal First Class * Republic of Vietnam Parachutist Badge. 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 removal of the entry of the Meritorious Service Medal (4th Award) from his 1985 DD Form 214. Rehearsal _______ _ __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) AR20150006157 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006157 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1