RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 22 January 2004
         DOCKET NUMBER: AR2003091140

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Ronald J. Weaver		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).

---

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that all awards to which he is entitled be added to his 8 December 1975 separation document (DD Form 214).

2. The applicant states, in effect, that he served in the Republic of Vietnam (RVN) and earned the Purple Heart (PH), Bronze Star Medal (BSM), Air Medal (AM), Combat Infantryman Badge (CIB), and a Unit Commendation that were not included in his DD Form 214. He also claims that the separation document fails to include any of the awards he earned while serving on active duty and does not document his overseas service.

3. In support of his application, he provides a copy of Department of Veterans Affairs (VA) claim documents, a summary prepared by the Army Discharge Review Board (ADRB), a Charge Sheet (DD Form 458) with an attached History of Accused (Fort Dix Form 14), and pictures that show him wearing the CIB.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on the date of his separation, 8 December 1975. The application submitted in this case is dated 5 May 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’s Military Personnel Records Jacket (MPRJ) contains a copy of General Orders Number 10211, dated 13 July 1969, issued by Headquarters,
9th Infantry Division. These orders awarded him the BSM with Valor (“V”) Device, for his heroism in connection with military action involving conflict with an armed hostile force in the RVN on 18 June 1969.

4. The MPRJ also contains a copy of a summary of the applicant’s service that was provided by the applicant’s unit for the Staff Judge Advocate, Fort Dix,
New Jersey, during the applicant’s discharge processing. This document shows that the applicant earned the BSM, CIB, AM, and a Unit Commendation during his service in the RVN with Company B, 2nd Battalion, 60th Infantry Regiment, 9th Infantry Division, from February to July 1969. However, there are no orders or other documents that confirm the applicant’s entitlement to the AM on file.
5. On 8 December 1975, the applicant was discharged, under other than honorable conditions (UOTHC), under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) contains the entry “None”, which indicates the applicant earned no awards during his tenure on active duty. This document also confirms that the applicant completed a total of 2 years, 3 months, and 1 day of creditable active military service and had accrued a total of 3850 days of time lost due to being absent without leave (AWOL). On 1 August 1978, the ADRB voted to upgrade the applicant’s discharge to general, under honorable conditions.

6. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH. It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in
action. In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer. This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

7. Paragraph 2-10 of the awards regulation contains guidance on award of the National Defense Service Medal (NDSM). It states, in pertinent part, that it is authorized to any member who served on active duty between 1 January 1961 and 14 August 1974, both dates inclusive. Paragraph 2-13 contains guidance on award of the VSM and it states, in pertinent part, that it is awarded to all members who served in the RVN from 3 July 1965 through 28 March 1973, and that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.

8. Table B-1 of the awards regulation contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, he was credited with participating in the Vietnam Counteroffensive Phase VI and TET Counteroffensive 1969 campaigns.

9. Chapter 8 of the awards regulation contains guidance on awarding Badges and Tabs. Paragraph 8-6 contains the criteria for awarding the CIB. It states,
in pertinent part, that the CIB is authorized for officers serving in an infantry specialty in the grade of colonel or below, who subsequent to 6 December
1941 has satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.

10. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It confirms that during his tenure of assignment in the RVN, the applicant’s units (60th Infantry Regiment) earned the RVN Gallantry Cross Unit Citation with Palm and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s claim that his 8 December 1975 DD Form 214 was inaccurate and did not list his overseas service in the RVN and failed to list the awards he earned during his tenure on active duty was carefully considered and found to have merit. The available evidence confirms that the applicant served in the RVN for five months between February and July 1969. As a result, his record should be corrected by documenting this overseas service.

2. The evidence also shows that the applicant was awarded the BSM with “V” Device, for heroism in action on 18 June 1969. It also confirms that at the time he earned this award, he was serving in a qualifying infantry MOS in a qualifying infantry unit. As a result, this award should be added to his record and it should be corrected to show his entitlement to the CIB. Further, based on his active duty service, the applicant is also entitled to the National Defense Service Medal.
3. The evidence also shows that based on his service and campaign participation in the RVN, the applicant is also entitled to the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and the Vietnam Service Medal with 2 bronze service stars.

4. However, although the service summary prepared in connection with his separation processing indicates he earned the Air Medal, there is no evidence of record or independent evidence available to verify his entitlement to this award. As a result, there is an insufficient evidentiary basis to add this award to his record. Further, there is no evidence that shows he was ever wounded in action or recommended for or awarded the PH.

BOARD VOTE:

_JHL___ __AO__ ___RJW__ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the following items of his 8 December 1975 DD Form 214 as indicated:

a. Item 12f to read “0 years, 5 months, and 0 days” vice 0 years,
0 months, and 0 days as is currently entered;

b. Item 26 to read “Bronze Star Medal with “V” Device, National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and Combat Infantryman Badge” vice None as currently listed; and

c. providing him a corrected separation document that includes these changes.

2. The Board further determined that the evidence presented is insufficient to warrant relief on the portion of application that pertains to the award of the Purple Heart, Air Medal, and Unit Commendation.




                  Joann H. Langston
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003091140
SUFFIX
RECON
DATE BOARDED	2004/01/DD
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1975/12/08
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of court-martial
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2. 46	107.0000
3.
4.
5.
6.