RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060012245 


	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. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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, that his service in Vietnam be shown in item 22c of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and that the awards listed in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) be updated.

2.  The applicant states, in effect, that the Department of Veterans Affairs (VA) decision of 31 March 2003 proves he served in the Republic of Vietnam (RVN).  He claims entitlement to the Expert Marksmanship Qualification Badge with Rifle (M16) Bar, Sharpshooter Marksmanship Qualification Badge with Rifle (M14) Bar, the Bronze Star Medal, and the RVN Campaign Medal with "1960-" Device.

3.  The applicant provides a copy of the VA Review Officer Decision, dated
31 March 2003, and circled a paragraph which notes that the applicant's records show he had his teeth cleaned and was promoted to pay grade E-4 at Post Office Zip Code 96312 (Cam Ranh Bay, Republic of Vietnam (RVN)). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 July 1973.  The application submitted in this case is dated 
6 August 2006.

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 enlisted for 3 years on 20 March 1970 for training as a stock control and accounting specialist.  

4.  Orders awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) on 14 May 1970.  He also qualified as a sharpshooter with the M-14, on 6 June 1970.  


5.  He completed training at Fort Lee, Virginia, and on 14 August 1970, was transferred as a private first class (pay grade E3) to Fort Ord, California with a reporting date of 9 September 1970.  

6.  On 29 May 1971, Headquarters U.S. Army Support Command Cam Ranh Bay, RVN at Army Post Office San Francisco 96312 advanced the applicant to specialist four (pay grade E-4).   

7.  On 10 October 1971 he  received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent from his appointed place of duty, the 0630 hours formation held at the 10th Transportation Battalion (Terminal) at Cam Ranh Bay. 

8.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) is blank until 31 January 1972 when he is shown to have been stationed at Fort Ord California.  

9.  On 25 August 1972 it was noted that some of his records, including his health and dental records were missing.   

10.  ON 14 December 1972, the applicant was tried by a special court-martial at Fort Ord, California of wrongfully appropriating a truck on 21 May 1972 and for being absent without leave (AWOL) from 3 July to 9 August 1972 and from
21 August until 27 October 1972.  He was sentenced to confinement for 45 days, forfeiture of $75.00 per month for 2 months, and reduction to pay grade E-1. 

11.  The applicant received NJP on 10 January for AWOL, and twice on
24 January 1973 for missing formation and for willful disobedience of and disrespect to a sergeant.  He received another NJP on 20 March 1973 for willful disobedience of and disrespect to a staff sergeant.  On 5 March 1973 a bar to reenlistment was approved.

12.  On 26 July 1973 he was separated with a general discharge under honorable conditions.  He had 3 years of creditable service and 164 days lost time.

13.  Item 22c, Foreign and/or Sea Service, of his DD Form 214 is blank.

14.  The VA requested, and on 30 April 1980, was provided the originals of the applicant's available medical and dental records. 


15.  Army Regulation 600-8-22 (Military Awards) provides that for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Based on the known date of the applicant's service in Vietnam, Appendix B indicates he served during the following two campaign periods:  the Counteroffensive Phase VII, 1 July 1970 - 30 June 1971; and the Consolidation I, 1 July 1971 – 30 November 1971.  The Vietnam Campaign Medal was awarded by the Republic of Vietnam to members of the armed forces who served at least 6 months in Vietnam or who, because of wounds or capture were prevented from serving the required 6 months.

16.  Department of the Army General Orders 8 of 1974 awarded the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army, Vietnam and subordinate units for the period 20 July 1965 to 28 March 1973. 

17.  Army Regulation 600-8-22 provides at paragraph 1-17 (Character of Service) the following guidance concerning the quality of service required of award recipients:

	a.  Personal decorations.  A medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement, or service has not been honorable. The determination of "honorable" will be based on such honest and faithful service according the standards of conduct, courage, and duty required by law and customs of the service of a member of the grade to whom the standard is applied.  Commanders will ensure that—

	(1) Individuals on whom favorable personnel actions have been suspended neither are recommended for nor receive awards during the period of the suspension.  Exceptions to the above are Soldiers who are flagged for APFT failure, in accordance with AR 600–8–2, paragraph
1–15.

	(2) Other-than-honorable service subsequent to submission of the recommendation for an award is promptly reported to the awards approving authority with a recommendation for appropriate action.


	b. Waiver for overweight. As an exception to subparagraph a(1), above, a Soldier who is flagged for overweight may be recommended for and presented an award based on valor, heroism, or for length of service retirement.  A waiver of the overweight flag must be processed to the first general officer in the Soldier’s chain of command for approval or disapproval.  A waiver for overweight is not required for award of the Purple Heart.  Approval or disapproval authority is delegated to the first general officer in the chain of command.  Waivers will be processed as separate and distinct actions from the award recommendation, and should be submitted and adjudicated prior to submission of the award recommendation.  Approved waivers will accompany the award recommendation once submitted.

	c. Badges.  A badge will not be awarded to any person who, subsequent to qualification therefore, has been dismissed, dishonorably discharged, or convicted of desertion by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was apparently in Vietnam between 29 May and 10 October 1971; however, the records are incomplete.  There is no available documentation of either his arrival or his departure.  There is insufficient evidence to complete item 22c, Foreign and/or Sea Service, on his DD Form 214.   

2.  The applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16 and M-14).  He is also authorized the Vietnam Service Medal with two bronze service stars and the RVN Gallantry Cross with Palm Unit Citation.  These awards should be added to his DD Form 214.

3.   The applicant's service was less than distinguished, but he did complete his enlistment and he should be credited with the appropriate awards.  The above awards should be shown on his DD Form 214.      

4.  There is insufficient evidence to support the conclusion that the applicant qualified for the RVN Campaign Medal with "1960-" Device which required at least 6 months service in Vietnam.  

5.  There is no available evidence to show that the applicant was recommended for or awarded the Bronze Star Medal. 

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 July 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
25 July 1976.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_JCR ___  __JRH __  __TMR__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 showing the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16 and M-14), the Vietnam Service Medal with two bronze service stars, and the RVN Gallantry Cross with Palm Unit Citation as authorized awards in item 24 of his DD Form 214. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to any other awards or listing foreign service in item 22c of the DD Form 214.




__Thomas M. Ray_____
CHAIRPERSON



INDEX

CASE ID
AR20060012245
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PART
REVIEW AUTHORITY

ISSUES         1.
107.00
2.
100.00
3.

4.

5.

6.