IN THE CASE OF: BOARD DATE: 28 August 2012 DOCKET NUMBER: AR20120003884 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 (Armed Forces of the United States Report of Transfer or Discharge) to show his: * service in Vietnam from September 1970 to March 1971 * rank/grade as a sergeant (SGT)/E-5 * award of the Army Commendation Medal 2. The applicant states, in effect, he was separated on a temporary record/oral affidavit. He served in Vietnam with various units from September 1970 to March 1971. 3. The applicant provides: * DD Form 214 * Citation for award of the Army Commendation Medal * Special Orders (SO) advancing him to the rank of specialist four (SP4)/E-4 * Promotion Standing List * General Orders (GO) Number 1187 awarding him the Army Commendation Medal 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. His military records show he was inducted into the Army of the United States on 16 January 1970 and he held military occupational specialty 05C (Radio Telephone Operator). 3. Special Orders Number 64, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, dated 5 March 1970, awarded him the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. He arrived in Vietnam on or about 17 September 1970 and served with: a. Headquarters and Headquarters Troop, 1st Squadron, 11th Armored Cavalry Regiment, from on or about 23 September 1970 to 17 February 1971; and b. Headquarters and Headquarters Battery, 1st Battalion, 39th Artillery, from on or about 18 February to 13 September 1971. 5. SO Number 26, issued by Headquarters, 11th Armored Cavalry Regiment, dated 26 January 1971, advanced him to the rank/grade of SP4/E-4 effective 14 January 1971. 6. He submitted the front page of a memorandum that appears to have been authored by Headquarters, 1st Battalion, 39th Artillery, dated 5 September 1971, incorporating his name on the Sergeant/Staff Sergeant Promotion Standing List. The memorandum shows he appeared before a promotion board, was recommended for promotion, and he was qualified for promotion. The memorandum further states promotion would be accomplished if Department of the Army cutoff scores were received for a certain grade and MOS. 7. His service records do not contain official orders promoting him to SGT/E-5 and his DA Form 20 lists SP4/E-4 as the highest rank/grade held. 8. GO Number 1187, issued by Headquarters, XXIV Corps, dated 29 July 1971, awarded him the Army Commendation Medal for meritorious service from September 1970 to September 1971. 9. SO Number 209, issued by Headquarters, 1st Battalion, 39th Artillery, reassigned him to Fort Lewis, WA, on or about 17 September 1971. The orders listed his rank as SP4. 10. His DA Form 137 (Installation Clearance Record) shows he outprocessed from Vietnam and was reassigned to the Fort Lewis, WA, Transfer Point for separation processing on about 13 September 1971. This form listed his rank as SP4. 11. On 17 September 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation. His DD Form 214 shows he completed 1 year, 8 months, and 1 day of creditable active service. This form also shows in: * items 5a (Grade, Rate, or Rank), 5b (Pay Grade), and 6 (Date of Rank), the entries "SGT," "E-5," and "NVAL (Not Available or Not Valid)" * item 12 (Last Duty Assignment and Major Command) - "APO (Army Postal Office) 96495" * item 22c (Foreign and/or Sea Service) - "USARPAC (U.S. Army Pacific) "NVAL" * item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal * item 30 (Remarks) - the entry "Vietnam Service: NVAL" 12. His records do not contain official orders awarding him the Army Good Conduct Medal. However, a review of his service record shows no derogatory information that would disqualify him for the first award of the Army Good Conduct Medal. Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he received "excellent" conduct and efficiency ratings during his military service. 13. Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service. This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service. The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial. 14. Department of the Army (DA) Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows, during his tenure with the 1st Squadron, 11th Armored Cavalry Regiment, this unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 1 March to 30 October 1970 based on DAGO Number 55, dated 1971. 15. DA Pamphlet 672-3 shows during his service with the 1st Battalion, 39th Artillery, this was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 1 March to 9 October 1971 based on DAGO Number 6, dated 1974. 16. Army Regulation 600-8-22 (Military Awards) provides for the following awards: a. The Vietnam Service Medal 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. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. b. Appendix B of Army Regulation 600-8-22 (Military Awards) shows during his service in Vietnam, participation credit was awarded for the below campaigns. This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign: * Vietnam Counteroffensive, Phase VII, 1 July 1970—30 June 1971 * Consolidation I, 1 July 1971—30 November 1971 c. The Republic of Vietnam Campaign Medal with Device (1960) (also known as the Vietnam Campaign Medal) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. 17. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. a. Items 5a and 5b show the rank/grade in which a member was serving at the time of separation and indicates whether the rank is permanent or temporary; for example, "MSG (T) [master sergeant, temporary], SP4 (P), etc." b. Item 6 shows the date of rank for the rank that is listed in item 5a. (1) If the date of rank is different from the date of appointment, enter the date of appointment in item 30 (Remarks). (2) If the grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment will be entered in item 30. c. Item 12 shows the last duty assignment and major command. d. Item 22c shows the total period of active service completed outside the continental United States during the period covered by the DD Form 214. e. Item 30 is used to complete entries too long for their respective blocks and/or as a cross-reference. An entry is made in item 30 with respect to the grade as follows: (1) If the date of appointment is different from the date shown in item 6, enter date of appointment as follows: "Item 6 – Date of Appointment 15 August 1955." (2) If the grade shown in item 5 is not permanent, enter the permanent grade, date of appointment, and date of rank if different from date of appointment, as follows: "Item 5 – MSG (P) (E-8), Appointed 1 August 1988" or Item 5 – SP5 (T), Appointed 13 September 1958, Date of Rank 1 August 1958." DISCUSSION AND CONCLUSIONS: 1. The applicant was separated on a temporary record and/or personal affidavit. As such, his DD Form 214 contains various administrative errors that require attention and/or correction. 2. With respect to his rank/grade and date of rank: a. The evidence of record shows the applicant appeared before a promotion board and he was recommended for promotion. His promotion would have been accomplished via the promotion instrument (promotion order) which was dependent on the DA promotion cut-off scores for a particular grade and MOS. b. The date "5 September 1971" is the date his name was added to the promotion standing list; it is not the date he was actually promoted. Although his DD Form 214 listed his rank/grade as SGT/E-5, in the absence of official orders promoting him to SGT/E-5, it is impossible to determine his date of rank or effective date of promotion. Therefore, there is insufficient evidence to correct his date of rank. 3. With respect to his last unit of assignment, the applicant's records show he was assigned to the 1st Battalion, 39th Field Artillery Group, Vietnam, at the time of separation. Item 12 of his DD Form 214 lists only the APO and the zip code. It should be corrected to show the last unit of assignment. 4. With respect to the awards and decorations: a. GO awarded him the Army Commendation Medal which is not listed on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this medal. b. He served a qualifying period of service for award of the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with "1960" Device. Additionally, he participated in two campaigns during his service in Vietnam. Therefore, he is entitled to two bronze service stars to be affixed to the Vietnam Service Medal and correction of his DD Form 214 to show these awards. c. GO awarded his units in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation when he was assigned to the units. Therefore, he is entitled to correction of his DD Form 214 to show these unit awards. d. SO awarded him the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). Therefore, he is entitled to correction of his DD Form 214 to show these badges. e. The available evidence confirms he served honorably on active duty during the period 16 January 1970 through 17 September 1971. He received “excellent” conduct and efficiency ratings and completed a combat tour in Vietnam. His records contain no derogatory information or evidence that shows he was denied award of the Good Conduct Medal. Therefore, it would be appropriate to award the applicant the first award of the Good Conduct Medal and to correct his DD Form 214 to show this award. 5. With respect to his foreign service, he served in Vietnam from on or about 18 September 1970 to 13 September 1971. His major theater of operations (USARPAC) is correctly listed in item 22c of his DD Form 214. However, the period of foreign service should be adjusted to show completion of 11 months and 26 days. Additionally, item 30 of his DD Form 214 should be corrected as a matter of clarity and equity to show his service in Vietnam accurately. 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 from item 12 the entry "APO 96495" and adding "1st Battalion, 39th Field Artillery, RVN (Vietnam), APO 96495"; b. deleting from item 22c the entry "NVAL" and adding the entry "0 11 26"; c. awarding him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 16 January 1970 through 17 September 1971; d. adding to his DD Form 214 the: * Army Good Conduct Medal (1st Award) * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Campaign Medal with "1960" Device * Army Commendation Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award) * Expert Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) e. deleting from item 30 the entry "NVAL" and adding the entry "Vietnam Service: 18 September 1970 - 13 September 1971." 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 correcting his date of rank to sergeant/E-5. __________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) AR20120003884 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120003884 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1