ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20180001671


APPLICANT REQUESTS: correction of his military records to show:

* his pay grade to read sergeant (SGT)/E-5
* he was awarded a Bronze Star with V device for valor

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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, in effect, he was told on date of return from overseas (DEROS) out of Vietnam, that his orders for his promotion to SGT and award of a Bronze Star Medal with V device for valor would follow him back to the United States.  He adds he knew wearing of the SGT stripes and medal without orders was a court-martial offense. The applicant chose to wait until he received orders from his unit.  He stated he is still waiting on his orders.

3.  A review of the applicant’s service record shows:

   a. He enlisted in the Regular Army on 13 November 1970.  He held military occupational specialty 11C (Indirect Fire Crewmember).  

   b. He served in Vietnam from 1 August 1971 to 17 April 1972, assigned to Company E, 1st Battalion, 46th Infantry.

   c.  Special Orders Number 265, issued by Headquarters, 23rd Infantry Division, promoted him to specialist four/E-4 on 13 September 1971.

   d.  His service record is void of documentation to show that he was promoted to the rank of sergeant/E-5.

	e.  Special Orders Number 109, dated 18 April 1972, issued by Headquarters, U.S. Army Personnel Center, Oakland CA, relieved the applicant from active duty, effective the same day, and assigned him to the U.S Army Reserve Control Group (Annual Training) on 19 April 1972.

	f.  His DD Form 214 shows he was honorably released from active duty on 19 April 1972.  He completed 1 year, 5 months, and 6 days of total active service.  His DD Form 214 shows in:

		(1)  Item 5a (Grade, Rate, or Rank) shows “SP4” for the rank of Specialist 4.

		(2)  Item 5b (Pay Grade) shows “E4”.

		(3)  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded or authorized the following medals and badges:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantry Badge

4.  On 26 March 1980, the applicant was forwarded correspondence from the U.S. Army Reserve Components Personnel and Administration Center (RCPAC), resulting from his submission of a Standard Form 180 (Request Pertaining to Military Records).  The applicable details are as follows:

	a.  He detailed his service in Vietnam and explained that he was put in for the Bronze Star Medal for performance of duty.  He stated his DD Form 214 did not list his Bronze Star Medal, Army Commendation Medal, and South Vietnamese Cross of Gallantry with Palms.

	b.  RCPAC informed the applicant that his military records failed to show his entitlement to the Bronze Star Medal or Army Commendation Medal.  He was told that he was authorized the Combat Infantryman Badge and the Republic of Vietnam Cross of Gallantry with Palm Unit Citation Award and provided copies of orders for both.  Because of the applicant’s length of service in Vietnam, he was also eligible to display three (3) bronze service stars on his Vietnam Service Medal.  Because the Republic of Vietnam Cross of Gallantry is a foreign award, not an item of issue by the Department of the Army, the applicant was informed how to purchase it from civilian sources.

5.  The applicant submitted a letter to his congressman’s office (Congressman X.), providing the response he received from RCPAC on 26 March 1980.  His service record does not show whether he submitted a DA Form 638 (Recommendation for Award) with his letter.  On 17 April 1980, Congressman D.’s office forwarded an inquiry to the Office of the Chief of Legislative Liaison, Department of the Army.

6.  On 27 May 1980, Congressman D.’s office forwarded follow-up correspondence to the commander, U.S. Army Military Personnel Center, Arlington, VA, acknowledging RCPAC retrieved proof (Citation, Award Certificate, and General Orders Number 02012, dated 6 May 1972, issued by Headquarters, 196th Infantry Brigade) the applicant received an Army Commendation Medal while in Vietnam.  The Congressman’s office was informed the applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), thereby adding the Army Commendation Medal to his DD Form 214 for the period ending 18 April 1972.

7.  On 18 June 1980, RCPAC informed Congressman D.’s office, with regard to the applicant’s recommendation for award of the Bronze Star Medal, if the original recommendation on the applicant’s behalf was lost, the applicant could be considered under the provisions of Public Law 86-582.  However, conclusive evidence of the formal submission of the recommendation into military channels, conclusive evidence of the loss of the recommendation through inadvertence, a copy of the original recommendation, or its substantive equivalent.  RCPAC added, the recommendation should be accompanied by statements, certificates, or affidavits of at least two eye witnesses corroborating the events of service involved.

8.  By regulation (AR 600-8-22), award of the Bronze Star Medal requires a formal recommendation, approval through the chain of command, and announcement in orders.  

9.  By regulation (AR 600-8), promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

10.  By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty.  The information entered thereon reflects the conditions as they existed at the time of separation.  Item 5a for enlisted personnel reflects the grade in which serving at time of separation as shown on the DA Form 20 and item 5b for enlisted personnel shows the pay grade. 


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon a review of all documentary evidence submitted by the applicant and found within the service record, the Board found there to be insufficient evidence of orders for promoting the applicant to the rank of SGT or awarding him the  BSM with “V” device.  For that reason, the Board recommended denying the applicant’s requested relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.


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 (AR) 600-8-22 (Military Awards), in effect at the time, governed the eligibility and award authority of all awards and decorations issued to members of the U.S. Army.  Paragraph 3-16, provides 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

3.  AR 600-8-22, paragraph 1-14 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. 

	a.  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.
	b.  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.  4.  By regulation (AR 672-5-1), in effect at the time, award of the Bronze Star Medal requires a formal recommendation, approval through the chain of command, and announcement in orders. 

4.  AR 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states, the DD Form 214 is a summary of the Soldier's most recent period of 
continuous active duty.  It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge.  The information entered thereon reflects the conditions as they existed at the time of separation.  The entries for items 5a, 5b, and 23a are as follows: 

	b.  Item 5a (Grade, Rate, or Rank), for enlisted personnel, enter grade in which serving at time of separation as shown in item 2 (Grade), DA Form 20

	c.  Item 5b (Pay Grade), for enlisted personnel, enter pay grade, e.g., “E-5” or “E-6”.

5.  AR 600-200 (Enlisted Personnel management System), in effect at the time, prescribed Department of the Army policy, criteria, and administrative instructions concerning enlisted promotions.  Paragraph 7-15 of this regulation describes normal requirements necessary to establish an individual’s eligibility for promotion.  For promotion to the rank/grade of sergeant/E-5, the required time in grade as an E-4 was 8 months and the required time in service was 36 months in the primary zone and 24 months in the secondary zone.  However the promotion authority may waive some requirements to permit promotion consideration of individuals who demonstrate an outstanding level of performance.  Waiver of one-half of the time in pay grade is permissible.  Personnel in pay grade E-4 with at least 21 months but less than 33 months of time in service may compete for recommended-list status in the secondary zone.  The individual must receive recommendation or concurrence in recommendation from their unit commander.  If duty is performed under other than the unit commander to whom assigned for administration, the recommendation will be indorsed by administrative unit commander.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180001671


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