RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 February 2005
      DOCKET NUMBER:  AR2004105199


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |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:

      a.  the Combat Infantryman Badge;

      b.  the Purple Heart;

      c.  two Overseas Service Bars;

      d.  the Sharpshooter Marksmanship Qualification Badge for the M14 and
the M16 rifles;

      e.  the Expert Marksmanship Qualification Badge for the M14; and

      f.  reinstatement to the rank of corporal/pay grade E-4;

2.  The applicant states:

      a.  that he served as a rifleman and grenadier on the line in Vietnam
and that he was wounded in the back of his head;

      b.  that he broke his right ankle during a mortar attack just prior
to his reduction to corporal (20 May 1968);

      c.  that he was a supply clerk from the time he arrived in Vietnam;

      d.  that when his unit was pinned down by mortar fire, everyone else
in the unit received the Combat Infantryman Badge;

      e.  that circumstances beyond his control resulted in his being
reduced from sergeant to corporal, and from corporal to private first
class.  The circumstances surrounding the reductions should be viewed as
matters of mitigation by the Board in its decision on whether to reinstate
his rank of corporal;

      f.  that he was in two firefights shortly after he arrived in Vietnam
and that he was wounded in the back of his head sometime in November 1967;
and

      g.  that he deserves Overseas Service Bars for service in Vietnam and
Thailand.

      h.  In a statement submitted through his congressional
representative, the applicant chronicled, in effect, his military service
in Vietnam.  The applicant wrote, in effect, that he was in two firefights
shortly after arriving in Vietnam and that he was wounded in the back of
his head sometime in November 1967.  The applicant further wrote, in
effect, that he broke his ankle jumping in a bunker during a mortar attack
just prior to his reduction to corporal (20 May 1968).  The applicant
wrote, in pertinent part, that "I'd really love to have my corporal stripes
back …"  The applicant wrote, in effect, that he deserves Overseas Service
Bars for service in Vietnam and Thailand.

      i.  In his statement, the applicant also wrote that he had received
some jungle warfare training and guerilla warfare training in Fort
Washington.

3.  The applicant provides, through his Congressional representative, a
self-authored statement and extracts from his military service records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant elected the American Legion as his counsel.

2.  On 29 November 2004, the Army Board for Correction of Military Records
notified the American Legion of the applicant's pending application and
requested that they review his records within 30 days.  However, the
American Legion has not provided a brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 17 October 1968.  The application submitted in this case is
dated 18 March 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 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 records show he enlisted on 1 May 1964 for a
period of 3 years.  He successfully completed basic combat and advanced
individual training and was awarded the military occupational specialty
76A10 (unit supply specialist).  The applicant reenlisted on 18 October
1965 for a period of 3 years.
He was released from active duty on 17 October 1968 having served a total
of
4 years, 5 months, and 17 days of active service characterized as
honorable.

4.  The records show that the applicant served as a supply sergeant (MOS
76Y40) in Vietnam from 30 June 1967 through 18 June 1968.  The records show
he served with Company D, 1st Battalion, 2nd Infantry from 23 August 1967
through 30 November 1967; with Company C, 1st Battalion, 2nd Infantry from
1 December 1967 through 23 January 1968; and with Headquarters,
A Company, 791st Maintenance Battalion from 24 January 1968 through 18 June
1968.

5.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214,
which he authenticated in his own hand, does not show the award of the
Combat Infantryman Badge, the Purple Heart, Overseas Service Bars, the
Sharpshooter Marksmanship Qualification Badge, or the Expert Marksmanship
Qualification Badge.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20
(Enlisted Qualification Record) does not show the award of the Combat
Infantryman Badge, the Purple Heart, the Sharpshooter Marksmanship
Qualification Badge, or the Expert Marksmanship Qualification Badge.  Item
41 does show "1 O/S bar."

7.  There are no orders in the applicant's military service records
awarding him the Combat Infantryman Badge.

8.  There are no orders in the applicant's military service records
awarding him the Purple Heart.

9.  Item 40 (Wounds) of the applicant's DA Form 20 does not contain any
entries indicating that the applicant received any wounds.

10.  Extracts from the applicant's available service medical records for
the period 20 February 1967 through 30 May 1968 show treatment for an "old
wound in head" on 5 and 6 October 1967, however, there is no entry to show
that the wound was a result of hostile action.  These extracts from the
applicant's available service medical records do not show any treatment for
a broken ankle.

11.  Records contain a Standard Form 88 (Report of Medical Examination),
dated 12 September 1968, which documents the applicant's separation
physical examination.  There is no mention of a head wound or a broken
ankle made on the examination.
12.  The applicant's name is not listed on the Vietnam Casualty Roster.

13.  For the purpose of computing service for the Overseas Service Bar, the
applicant served 13 months in Vietnam during the period 1 July 1958 to 28
March 1973.

14.  There are no orders in the applicant's military service records
awarding him the Sharpshooter Marksmanship Qualification Badge for the M14.

15.  Headquarters, Atlanta Army Depot Special Orders Number 50, dated
18 April 1967, awarded the applicant the Marksman Marksmanship
Qualification Badge with rifle bar.

16.  Headquarters, 4th Battalion, 39th Artillery, Fort Bragg, North
Carolina Special Orders Number 125, dated 17 August 1968, awarded the
applicant the Expert Marksmanship Qualification Badge with rifle bar.

17.  On 9 April 1968, the applicant accepted non-judicial punishment (NJP)
under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure
to obey a lawful order.  His punishment consisted of reduction to
corporal/pay grade E-4 (suspended for two months) and forfeiture of $60 for
two months.  Headquarters,
1st Infantry Division Special Order Number 141, dated 20 May 1968, reduced
the applicant to corporal/pay grade E-4.

18.  On 16 September 1968, the applicant again accepted NJP for failure to
obey a lawful order.  His punishment consisted of reduction to private
first class/pay grade E-3, restriction to the battery area, place of duty,
and place of worship for 10 days, and performance of two hours extra duty
for 10 days.

19.  A review of the applicant's records shows that he is entitled to
additional awards, which are not listed on any of his DD Forms 214.

20.  Based on the applicant's dates of service in Vietnam, Table B-1 of
Army Regulation 600-8-22 shows he served in the Vietnam Counteroffensive,
Phase III Campaign (1 June 1967 - 29 January 1968); the Tet Counter
offensive Campaign (30 January 1967 - 1 April 1968); and the Vietnam
Counteroffensive, Phase IV Campaign (2 April 1968 - 30 June 1968).


21.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign
Participation Credit Register) lists campaign participation credit, assault
landing credit, unit citation emblems, and occupation duty credit for World
War II and for the Korean War.  This document shows that, at the time of
the applicant’s assignment to Company D, 1st Battalion, 2nd Infantry, the
unit received the Republic of Vietnam Gallantry Cross with Palm Unit
Citation for the period


12 July 1965 through 16 October 1968, based on Department of the Army
General Order Number 21, dated 1969.


22.  Department of the Army Pamphlet 672-1 also shows that, at the time of
the applicant’s assignment to the Company D, 1st Battalion, 2nd Infantry,
the unit received the Republic of Vietnam Civil Actions Medal Unit Citation
for the period October 1965 through 7 April 1970, based on Department of
the Army General Order Number 53, dated 1970.

23.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
procedures concerning awards.  Paragraph 8-6 provides for award of the
Combat Infantryman Badge.  This paragraph states that there are basically
three requirements for award of the Combat Infantryman Badge.  The soldier
must be an infantryman satisfactorily performing infantry duties, he must
be assigned to an infantry unit during such time as the unit is engaged in
active ground combat, and he must actively participate in such ground
combat.  Specific requirements state, in effect, that an Army enlisted
soldier must have an infantry specialty, satisfactorily performed duty
while assigned or attached as a member of an infantry unit of brigade,
regimental, or smaller size during any period such unit was engaged in
active ground combat.  A recipient must be personally present and under
hostile fire while serving in an assigned infantry primary duty, in a unit
actively engaged in ground combat with the enemy.

24.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations)
specifically governed award of the Combat Infantryman Badge to Army forces
operating in South Vietnam.  This regulation specifically stated that
criteria for award of the Combat Infantryman Badge identified the man who
trained, lived, and fought as an infantryman and the Combat Infantryman
Badge is the unique award established to recognize the infantryman and only
the infantryman for his service.  Further, “the Combat Infantryman Badge is
not an award for being shot at or for undergoing the hazards of day to day
combat.”  This regulation also stated the Combat Infantryman Badge was
authorized for award to infantry officers and to enlisted and warrant
officer persons who have an infantry MOS and required that they must have
served in active ground combat while assigned or attached to an infantry
unit of brigade, regimental or smaller size.

25.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained as a result of hostile action.
Substantiating evidence must be provided to verify that the wound was the
result of hostile action, the wound must have required treatment, and the
medical treatment must have been made a matter of official record.
26.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and
Insignia), in effect at the time, governs the requirements for the overseas
service bar.  In pertinent part, it provides that a bar is authorized for
wear for each period of active Federal service as a member of the U.S. Army
outside of the continental limits of the United States for the specific
time frames and areas of operation cited in Army Regulation 670-1 or
appropriate Department of the Army message. There are special provisions
regarding authorization for the overseas service bar for service in a
hostile fire zone and for combining service to calculate award of the bars.
 For Vietnam service, one overseas service bar is authorized for each
period of 6 months active Federal service as a member of a U.S. Service in
Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and
the month of departure from Vietnam are counted as whole months for credit
toward the overseas service bar.

27.  Army Regulation 600-8-22, in pertinent part, sets forth requirements
for award of basic marksmanship qualification badges.  The qualification
badge is awarded to indicate the degree in which an individual has
qualified in a prescribed record course, and an appropriate bar is
furnished to denote each weapon with which the individual has qualified.
The qualification badges are in three classes:  Expert, Sharpshooter, and
Marksman.

28.  Army Regulation 635-5 (Separation Documents), dated 23 January 1967,
was in effect at the time of the applicant’s separation.  The regulation
provided for entry of the following in Item 25 of the DD Form 214: service
schools; military sponsored courses in civilian schools and colleges;
installation training courses; military correspondence courses; and, off-
duty courses successfully completed.

29.  Army Regulation 600-8-22, in pertinent part, authorizes award of the
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation.  A silver star is worn instead of five
bronze service stars.  The regulations state that authorized bronze service
stars will be worn on the appropriate service medal, which in this case is
the Vietnam Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Combat Infantryman
Badge.

2.  Evidence shows the applicant was assigned in Vietnam in MOS 76Y40 (a
non-infantry MOS) as a supply sergeant.  Therefore, the applicant did not
meet the regulatory requirements for award of the Combat Infantryman Badge.

3.  The records do not contain any evidence and the applicant has provided
no evidence to show he was present under fire while engaged in ground
combat with the enemy.

4.  Therefore, in the absence of documentation, which shows the applicant
was awarded the Combat Infantryman Badge or met the regulatory requirements
for the Combat Infantryman Badge, there is insufficient evidence upon which
to base an award of the Combat Infantryman Badge in this case.

5.  The applicant contends that he should be awarded the Purple Heart.

6.  There is no evidence of record, and the applicant has provided no
evidence, which shows that he was awarded the Purple Heart or that he was
wounded or treated for a head injury or a broken ankle as a result of
hostile action.  The applicant's medical records only show treatment for a
head wound.  There are no treatment records available that show treatment
for a broken ankle.  The applicant's statement that he was wounded in the
back of his head and that he broke his ankle during a mortar attack is
noted. However, absent any other corroborating evidence of record, this
statement alone, over 35 years after the fact, is not sufficient as the
basis for award of the Purple Heart.  Therefore, the applicant is not
entitled to award of the Purple Heart.

7.  The applicant contends that he is entitled to two Overseas Service Bars
based on his service in Vietnam.  The applicant is credited with 13 months
service in Vietnam; therefore he is entitled to two Overseas Service Bars.

8. The applicant contends that he is entitled to the Sharpshooter
Marksmanship Qualification Badge for the M14 and the M16, and that he was
awarded the Expert Marksmanship Qualification Badge for the M14.

9.  Records do not contain orders awarding the applicant the Sharpshooter
Marksmanship Qualification Badge for the M14.  Therefore, the applicant is
not entitled to the Sharpshooter Marksmanship Qualification Badge.

10.  Records show the applicant is entitled to the Marksman Marksmanship
Qualification Badge with rifle bar.

11.  Records show the applicant is entitled to the Expert Marksmanship
Qualification Badge with rifle bar.

12.  The applicant contends that he should be reinstated to corporal.

13.   Records show that the applicant was reduced to private first class on

16 September 1968.  The matters of mitigation provided by the applicant are
insufficient to warrant restoring the applicant's rank.

14.  The applicant contends that he received some jungle warfare training
and guerilla warfare training.  However, the records do not contain any
evidence and the applicant has not provided any evidence showing that he
received this training.  Therefore, there is no basis to support the
applicant's contention that he received jungle warfare training and
guerilla warfare training.

15.  The applicant's military personnel records show he participated in
three campaigns during his service in Vietnam.  Therefore, he is entitled
to three bronze service stars to be worn on his Vietnam Service Medal.

16.  The applicant was serving with Company D, 1st Battalion, 2nd Infantry
during the period the unit was cited for award of Republic of Vietnam
Gallantry Cross with Palm Unit Citation.  Therefore the applicant is
entitled to Republic of Vietnam Gallantry Cross with Palm Unit Citation.

17.  The applicant was serving with Company D, 1st Battalion, 2nd Infantry
during the period the unit was cited for award of Republic of Vietnam Civil
Actions Medal Unit Citation.  Therefore the applicant is entitled to the
Republic of Vietnam Civil Actions Medal Unit Citation.

18.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 October 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
16 October 1971.  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 timely file in this case.

19.  Evidence shows that the applicant’s records contain administrative
error, which does not require action by the board.  Therefore,
administrative correction of the applicant’s records 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

___wtm__  ___wap _  ___jtm __ 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:

      a.  award of two Overseas Service Bars;

      b. award of three bronze service stars  to  be  worn  on  his  Vietnam
Service Medal;


      c.  award of the Republic of Vietnam Gallantry Cross with Palm Unit
Citation;


      d.  award of the Republic of Vietnam Civil Actions Medal Unit
Citation;

      e.  award of the Marksman Marksmanship Qualification Badge with rifle
bar; and

      f.  award of the Expert Marksmanship Qualification Badge with rifle
bar.









                                  _____Walter T. Morrison_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105199                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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