RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 May 2005
      DOCKET NUMBER:  AR20040005179


      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. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Antonio Uribe                 |     |Member               |

      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, award of the Army Good Conduct Medal
and any other awards to which he is entitled.

2.  The applicant states, in effect, he never received the AGCM and would
like it and any other awards to which he is entitled to be added to his
record.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 August 1967.  The application submitted in this case is
dated
21 July 2004.

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 limitations 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 record shows that he enlisted in the Regular Army and
entered active duty on 4 June 1965.  He was trained in, awarded and served
in military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms the
applicant served in the Republic of Vietnam (RVN) from 30 December 1965
through 28 January 1967.  It further shows that during his RVN tour, he was
assigned to Company B, 2nd Battalion, 502nd Infantry Regiment, performing
duties in MOS 11B.

5.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows
that he earned the following awards during his active duty tenure:
Parachutist Badge, Vietnam Service Medal, Combat Infantryman Badge, RVN
Campaign Medal, National Defense Service Medal and Marksman Qualification
Badge with Rifle Bar.  Item 44 (Time Lost) shows that he accrued a 30 days
of time lost due to being absent without leave (AWOL) on two separate
occasions between 2 July and 10 October 1966.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains
documents confirming that the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on two separate occasions.  These NJP actions were based on
the offenses of AWOL and disobeying a lawful order, and were imposed on 1
August 1966 and
1 November 1966, respectively.

7.  On 16 August 1967, while serving at Fort Bragg, North Carolina, the
applicant was honorably separated, by reason of hardship discharge.  The DD
Form 214 he was issued at that time confirms he completed a total of 2
years, 2 months and 13 days of creditable active military service and that
he accrued 30 days of time lost due to AWOL.

8.  Item 24 of (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) the applicant’s DD Form 214 shows
he earned the following awards during his active duty tenure:  Parachutist
Badge, Combat Infantryman Badge, RVN Campaign Medal, and National Defense
Service Medal.  The AGCM is not included in this list of authorized awards.
 The applicant authenticated the DD Form 214 with his signature in Item 32
(Signature of Person Being Transferred or Discharged) on the date of his
separation.

9.  Army Regulation 672-5-1 (Military Awards), in effect at the time,
prescribed the Army’s awards policy.  Section III provided guidance on
award of the AGCM and stated, in pertinent part, that it was awarded on a
selective basis to each Soldier who distinguished himself from among his
fellow Soldiers by his exemplary conduct, efficiency, and fidelity.  It
further stated that there was no right or entitlement to this medal until
the immediate commander made a positive recommendation for its award.

10.  Army Regulation 600-8-22 (Military Awards) contains the current Army
awards policy.  Paragraph 2-13 contains guidance on award of the Vietnam
Service Medal (VSM).  It states, in pertinent part, that it is authorized
to all members who served in the RVN from 3 July 1965 through 28 March
1973.  It further stipulates 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.  Table B-1 lists RVN campaigns and confirms that
based on the period of his RVN service, he was credited with participating
in the Vietnam Counteroffensive Phase I, Vietnam Counteroffensive Phase II
and Vietnam Counteroffensive Phase III campaigns.

11.  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 unit (2nd Battalion, 502nd Infantry
Regiment) received the Presidential Unit Citation (PUC), Meritorious Unit
Commendation (MUC) and RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the AGCM was carefully
considered. However, given his disciplinary history, it appears his not
being awarded the AGCM was likely the result of his unit commander electing
not to recommend him for it, rather than being the result of an
administrative error.  Thus, it would not be appropriate to grant this
requested relief at this late date.

2.  Records show the applicant should have discovered the alleged error or
injustice related to award of the AGCM now under consideration on 16 August
1967.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 15 August 1970.  However, he failed to 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 timely file in this case.

3.  The record does show that based on RVN service and campaign
participation the RVN, the applicant is entitled to the VSM with 3 bronze
service stars, PUC, MUC and RVN Gallantry Cross with Palm Unit Citation.
It also shows that he earned the Marksman Qualification Badge with Rifle
Bar.  The omission of these awards is an administrative matter that does
not require Board action.  Correction of his record will be accomplished by
the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI__  ___AU __  __JLP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show his entitlement to the Vietnam Service Medal with 3
bronze service stars, Presidential Unit Citation, Meritorious Unit
Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation
and Marksman Qualification Badge with Rifle Bar; and by providing him a
corrected separation document that includes these awards.




            ____Jennifer L. Prater______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005179                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/08/16                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Hardship Discharge                      |
|BOARD DECISION          |DENY with AdmNote                       |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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