RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003090244


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests award of the Good Conduct Medal.

2. The applicant states that he believes through oversight he was not awarded the Good Conduct Medal. He contends that the only blemish on his military records is an Article 15 for being 24 hours late in returning to Fitzsimmons Hospital in Denver, Colorado, following a 30-day medical leave. He further contends that he was late because his train was delayed and he did not think to call his unit for an extension of leave.

3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge); orders and an award certificate for the Army Commendation Medal with "V" Device (First Oak Leaf Cluster) for heroism on 9 April 1970; a citation and award certificate for the Air Medal; award certificates for the Purple Heart and the Bronze Star Medal; and an Honorable Discharge Certificate from the U.S. Army Reserve, dated 1 April 1974.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred on 8 April 1971. The application submitted in this case is dated 1 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted on 9 April 1968 for a period of 3 years. He served as a light weapons infantryman assigned to Company A, 2nd Battalion, 12th Infantry of the 25th Infantry Division in Vietnam from 21 October 1969 through 13 May 1970. On 8 April 1971, the applicant was honorably released from active duty in the rank of sergeant.

4. The applicant's DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Army Commendation Medal with First Oak Leaf Cluster, the Bronze Star Medal, the Air Medal, one award of the Overseas Service Bar, the Purple Heart, the Parachutist Badge, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar as authorized awards.

5. There are no orders for the Good Conduct Medal in the applicant's service personnel records.

6. The applicant's personnel records show that while serving in the rank of sergeant in Vietnam, on 20 January 1970, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties by negligently failing to inspect the guard on Bunker 28.

7. The applicant's DA Form 20 (Enlisted Qualification Record) shows his conduct rating for the period 15 May 1970 through 9 September 1970 was "good" while he was a patient at Fitzsimmons Hospital in Denver, Colorado.

8. 25th Infantry Division General Orders Number 3513, dated 26 March 1970, show the applicant received the Army Commendation Medal with "V" Device for heroism on 19 January 1970 in Vietnam.

9. 25th Infantry Division General Orders Number 5433, dated 25 May 1970, show the applicant received the Army Commendation Medal with "V" Device (First Oak Leaf Cluster) for heroism on 9 April 1970 in Vietnam.

10. The applicant's service personnel records show that he participated in three campaigns during his assignment in Vietnam.

11. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 5, dated 1973.

12. Department of the Army Pamphlet 672-3 also shows the applicant's unit is entitled to award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971.

13. Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations. It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. At the time, a soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 was not disqualifying. However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in General Orders.
14. Army Regulation 600-8-22, in pertinent part, provides that the bronze “V” device indicates acts of heroism involving conflict with an armed enemy.

15. Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1. There are no orders for the Good Conduct Medal in the available records. The applicant’s military records show one conduct rating of “good” which is a disqualifying factor for award of the Good Conduct Medal. In view of the foregoing, he does not meet the eligibility criteria for award of the Good Conduct Medal.

2. Records show the applicant should have discovered the error or injustice now under consideration on 8 April 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 April 1974. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

3. Evidence shows that the applicant’s records contain administrative errors which do not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

JNS___ MDM_____ BJE_____ DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.
2. The Board determined that administrative error in the records of the individual concerned should be corrected. Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the individual concerned to show he was awarded the Army Commendation Medal with "V" Device (First Oak Leaf Cluster), the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.





                  _John N. Slone________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090244
SUFFIX
RECON
DATE BOARDED	20031118
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.0056
2.
3.
4.
5.
6.