IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160007021 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160007021 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :AIR :RAS RML: DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20160007021 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 award of the Silver Star and correction of his records to show he was promoted to sergeant (SGT)/E-5. 2. The applicant states: a. He believes the record pertaining to his assignment to the 101st Airborne Division is incomplete. The commanding officer of 3rd Battalion, 187th Infantry, told him he was put in for a Silver Star. He had walked point in front of two companies of the 3rd Battalion, 187th Infantry, and a Vietnamese company at night on a deserted road that was known to have booby-traps under flares from artillery. They went to aid a line platoon that was under fire. He believes someone in that line platoon received a Purple Heart for action that night. b. He was also told he was guaranteed his SGT/E-5 rank. He was doing an officer's job as a forward observer. He previously thought he was passed over; however, he now knows that the record is incomplete. He was in an artillery battalion on loan to the 3rd Battalion, 187th Infantry. He served with the 101st Airborne from 6 April 1971 to 21 September 1971. He was sent home on emergency leave because his father had passed away. He did not return to Vietnam; instead, he remained at Fort Lewis, WA. He believes the record is inaccurate as it shows him going from the 1st Cavalry Division to Fort Lewis, WA, bypassing his time with the 101st Airborne Division. He would like to recover this time and his SGT stripes. 3. The applicant provides Congressional correspondence. 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 applicant's request for award of the Silver Star, based upon his application, the evidence of record, and accompanying supporting documents he provides, it does not appear he was recommended for or awarded the Silver Star. a. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states in paragraph 2-5, Section II, that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her. b. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Paragraph 1-14 of this regulation states, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), which is outlined below, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of 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. Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130. 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, an applicant must submit a DA Form 638 (Recommendation for Award). The DA Form 638 should clearly identify his/her unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which he/she 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, an applicant must submit his/her request through a Member of Congress who will send it to the U.S. Army Human Resources Command, 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. As such, the issue of the Silver Star will not be further considered in this Record of Proceedings. 3. The applicant was inducted into the United States Army on 16 February 1970 in the rank/pay grade of private/E-1. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Mechanic). 4. Unit Orders Number 62, issued by Battery D, Enlisted Student Battalion, U.S. Army Field Artillery Center, Fort Sill, OK, promoted him to private first class (PFC)/E-3 on 6 July 1970. 5. Special Orders (SO) Number 206, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, on 31 July 1970, appointed/promoted him to specialist four (SP4)/E-4 on 31 July 1970, in accordance with chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System). 6. He served in Vietnam from 24 August 1970 to 17 September 1971. His DA Form 20 (Enlisted Qualification Record) shows he was assigned as follows: * Headquarters and Headquarters Battery, 1st Battalion, 30th Artillery, 1st Cavalry Division, from 3 September 1970 to 31 January 1971 * Headquarters and Headquarters Battery, 1st Battalion, 321st Artillery, from 1 February to 4 June 1971 * Battery B, 1st Battalion, 321st Artillery, from 5 June to 16 August 1971 7. General Orders (GO) Number 2334, issued by Headquarters, 1st Cavalry Division, on 4 February 1971, awarded him the Army Commendation Medal for service from August 1970 to March 1971. The GO listed his rank as SP4 and his unit as 1st Battalion, 30th Artillery. 8. GO Number 2337, issued by Headquarters, 1st Cavalry Division, also on 4 February 1971, awarded him the Army Commendation Medal (1st Oak Leaf Cluster) for achievement from 1 December 1970 to 31 January 1971. The GO listed his rank as SP4 and his unit as 1st Battalion, 30th Artillery. 9. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders showing he was awarded the Silver Star. However, it revealed the following orders: a. GO Number 6801, issued by Headquarters, 101st Airborne Division, on 19 June 1971, awarded him the Army Commendation Medal for service from August 1970 to March 1971 (same dates of service as shown in GO Number 2334, issued by Headquarters, 1st Cavalry Division). The GO listed his rank as SP4 and his unit as 1st Battalion, 321st Artillery. b. GO Number 8529, issued by Headquarters, 101st Airborne Division, on 15 August 1971, awarded him the Army Good Conduct Medal for service from 16 February 1970 to 20 September 1971. The GO listed his rank as SP4 and his unit as 1st Battalion, 321st Artillery. 10. On 16 August 1971, Headquarters, 101st Airborne Division, Vietnam, published SO Number 222 reassigning him on a permanent change of station to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, with a reporting date of 16 October 1971. The orders listed his rank as SP4 and his unit as Company C, 3rd Battalion, 187th Infantry. 11. SO Number 283, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA on 10 October 1971 ordered his release from active duty effective 11 October 1971. The orders listed his rank as SP4. 12. His DA Form 137 (Installation Clearance Record), published by A Battery, 2nd Battalion, 18th Field Artillery, Fort Lewis, listed his rank as a SP4. 13. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he held the rank/grade of SP4/E-4 at the time of his separation. 14. He was honorably released from active duty on 11 October 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligations. His DD Form 214 shows in Items 5a and 5b "SP4" and "E-4" respectively and in Item 6 (Date of Rank) shows the entry "31 July 1970." 15. Letter Orders Number 01-1005684, issued by the Reserve Components Personnel and Administration Center on 29 June 1976 honorably discharged him from the USAR effective 1 February 1976. The orders listed his rank as SP4. REFERENCES: 1. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated, in part, that the promotion of enlisted personnel, appointments, grade reductions, and grade restoration were announced in orders. 2. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states, in part, that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation, the rank is taken from the Soldier’s promotion/reduction orders, and item 6 shows the date of rank. DISCUSSION: 1. The evidence of record shows the applicant was advanced to SP4/E-4 on 31 July 1970. He held this rank/grade when he was separated on 11 October 1971. This rank and grade are properly shown on his DD Form 214 and there is no justification to change either entry. 2. Item 33 of his DA Form 20 does not show he was promoted to E-5 and his Installation Clearance Record as well as other orders (reassignment, separation) in his records confirm he held the rank/grade of SP4/E-4 on 11 October 1971. 3. His DA Form 20 shows he served in Vietnam from 24 August 1970 to 17 September 1971. a. His DA Form 20 shows he was assigned to the 1st Battalion, 30th Artillery, and the 1st Battalion, 321st Artillery, both of the 1st Cavalry Division. Additionally, the two awards of the Army Commendation Medal, issued by Headquarters, 1st Cavalry Division, on 4 February 1971, show he was assigned to the 1st Battalion, 30th Artillery, from August 1970 to March 1971. b. He was issued a third set of GO by Headquarters, 101st Airborne Division, albeit for the same period of service as the GO that awarded him the first award of the Army Commendation Medal This GO listed his rank as SP4 but his unit as the 1st Battalion, 321st Artillery. c. His orders reassigning him from Vietnam to Fort Lewis in August 1971 were issued by Headquarters, 101st Airborne Division and reflect his unit as the 3rd Battalion, 187th Infantry. It is possible he was assigned or attached to the 3rd Battalion, 187th Infantry; however, there are no orders in his records to show when he was attached or assigned to this unit. d. Despite these orders showing his unit as the 3rd Battalion, 187th Infantry, these same orders listed his rank as SP4. All documents (award orders, clearance papers, and separation orders (at Fort Lewis)) reflect his rank as SP4. While his units of attachment/assignment appear problematic, nowhere is there evidence he was recommended for promotion or appointed/promoted to SGT. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007021 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007021 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2