ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20170013637 APPLICANT REQUESTS: correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 16 April 1971 as follows: * change his military occupational specialty (MOS) from 67A (Helicopter Mechanic) to 67N (UH-1 Helicopter Mechanic) * his rank/grade from specialist four (SP4)/E-4 to sergeant (SGT)/E-5 * back pay associated with his MOS, and flight pay * to be awarded the Air Medal * to add the Army Commendation Medal * to add any other awards he earned APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the information on his DD Form 214 is incorrect. His MOS and rank are incorrect. He was the Crew Chief and Gunner on "Death Rides a White Horse" UH-1H, 67-17461 (114th Assault Helicopter Company- White Knights). According to information obtained, the rank of crew chief should be E-5. Because of these errors, he never from received the rank, pay or medals he earned, even though he was on flight status. He also received a letter of recommendation but never received the medal associated with it. 3. Review of the applicant's service records shows: a. He was inducted into the Army of the United States on 19 August 1969. b. He completed advanced individual training at Fort Rucker, AL and he was awarded primary MOS 67A (Helicopter Mechanic) on 15 December 1969 (by Special Orders (SO) Number 282, issued by Headquarters, U.S. Army Aviation School, Fort Rucker, on 31 October 1969). c. SO Number 191, issued by Headquarters, U.S. Army Training Center, Fort Ord, CA on 2 October 1969, awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). d. SO Number 262, issued by Headquarters, U.S. Army Aviation School on 15 December 1969, promoted him to private first class (PFC)/E-3. e. On 31 January 1970, he was convicted by a summary court-martial of two specifications of being absent without leave (AWOL) from 7 to 9 January 1970 and from 9 to 28 January 1970, and two specifications of disobeying a lawful order. The court sentenced him to confinement at hard labor for 30 days (suspended), forfeiture of pay, and reduction to the lowest enlisted grade of E-1. The convening authority approved his sentence on the same date. f. He served in Vietnam from 28 January 1970 to 15 April 1971, through 2 campaigns. He was assigned to 114th Aviation Company (Assault Helicopter) as follows: * 6 February to 24 April 1970, Aircraft Maintenance Apprentice, in duty MOS (DMOS) 67A * 25 April to 28 September 1970, Door Gunner, in DMOS 67A * 29 September 1970 to 12 April 1971, crew chief in DMOS 67N g. Unit Orders Number 78, issued by the 114th Aviation Company, Vietnam on 26 June 1970 promoted him to the grade of PFC/E-3, effective 2 March 1970. h. Unit Orders Number 84, issued by the 114th Aviation Company on 14 July 1970, promoted him to the grade of SP4/E-4, effective 14 July 1970. i. General Orders Number 1245, issues by Headquarters, 1st Aviation Brigade on 16 February 1971 awarded him the Army Commendation Medal for service from April 1970 to April 1971. j. There is no evidence in his records and he provides none to show: * he was awarded primary MOS 67N during his active service * he was recommended for or promoted to SGT/E-5 * he was recommended for or awarded the Air Medal j. He was honorably released from active duty on16 April 1971. His DD Form 214 shows he completed 1 year, 7 months, and 9 days of active service with lost time from 9 to 28 January 1970. It also shows in: * Blocks 5a (Grade, Rate or Rank) and 5b (Pay Grade), SP4 and E-4 respectively * Block 6 (Date of Rank), 14 July 1970 * Block 23a (Specialty Number and Title), 67A1O, Helicopter Mechanic * Block 24 (decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal 4. By regulation (AR 600-200), in effect at the time promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders. There are no orders to show he was promoted to SGT. 5. By regulation (AR 635-5), the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. Blocks 5a and 5b will show the active duty rank and pay grade at 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. Additionally, block 23a, showed the primary specialty number and title, and block 24, showed awards, decorations, and badges from the member's records. * He held the rank/grade of SP4/E-4 at the time of separation * He may have performed in duty MOS 67N, but his primary MOS at the time of separation was 67A 6. By regulation (AR 600-8-22), as with all personal decorations, award of the Air Medal requires formal recommendations, approval through the chain of command, and announcement in orders. There is no evidence of a recommendation or orders. 7. A service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. Additionally, by law (Title 31 U. S. Code (USC), section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 8. The Army Commendation Medal may be administratively corrected/added to his DD Form 214, together with his Marksmanship Badge, without action by the Board. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, as well as the administrative note below from the analyst of record, the Board concluded there was sufficient evidence to show that the applicant was awarded a previous Army Commendation Medal, which is not currently reflected on his DD Form 214. However, the Board also found that there was no documentary evidence to show that the applicant was promoted beyond the rank of Specialist E4, that he was ever awarded the military occupation specialty of 67N, that he should have been receiving flight pay, that he was awarded the Air Medal or other medals not reflected below in the administrative notes. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by adding the Army Commendation Medal. 2. Additionally, the Board determined that the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, Board recommends adding the awards noted below in the administrative notes in order to more accurately depict the military service of the applicant. 3. Finally, the Board determined 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 all other requested relief. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, amend his DD Form 214 as follows: * add Republic of Vietnam Gallantry Cross with Palm Unit Citation * add Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * delete Vietnam Service Medal and add Vietnam Service Medal with 2 bronze service stars REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders. 3. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states * items 5a and 5b will show the active duty rank and pay grade at time of the Soldier's separation; the rank is taken from the Soldier’s promotion/reduction orders * item 6 shows the date of rank * item 23a, showed the primary specialty number and title * item 24, showed awards, decorations, and badges from the member's records 4. Army Regulation 600-8-22 (Military Awards) states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight. This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 5. U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal. It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations. It defined terms and provided guidelines for the award based upon the number and types of missions or hours. Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal. However, the regulation was clear these guidelines were considered only a departure point. 6. Title 31 U. S. Code (USC), section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. A change to this statue is not within the purview of this Board. ABCMR Record of Proceedings (cont) AR20170013637 2 1