RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20060017310 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Sherri V. Ward

Chairperson

Mr. Richard T. Dunbar

Member

Mr. David W. Tucker

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 Defense Meritorious Service Medal, Purple Heart, Legion of Merit, and Korea Defense Service Medal.

2.  The applicant states, in effect, that the requested awards were not listed on his discharge document when he retired from active duty.  He also states, in effect, that he wrote a letter to inquire about the Defense Meritorious Service Medal, but never received a response.  He further states, in effect, the Korea Defense Service Medal was only recently authorized for acceptance and wear; however, he has award orders for both the Purple Heart and Legion of Merit.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 August 1985; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 3 October 1970; a handwritten letter from Joe N. C_____, undated; Headquarters and Headquarters Company, 7th Special Forces Group (Airborne), Fort Bragg, North Carolina, memorandum, dated March 1983, subject: Defense Meritorious Service Medal; DA Form 2496 (Disposition Form), dated 13 April 1981, subject:  Recommendation for Award; Headquarters, U.S. Army Section, U.S. Military Training Mission to Saudi Arabia, memorandum, undated, subject:  Recommendation for the Defense Meritorious Service Medal with Citation; Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 1097, dated 19 July 1969; DA Form 4980-10 (Purple Heart Certificate), dated 19 July 1969; Headquarters, U.S. Army Forces Command, Fort McPherson, Georgia, Permanent Orders 139-2, dated 28 August 1985; and DA Form 4980-11 (Legion of Merit Certificate), dated 30 August 1985.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 August 1985, the date he retired from active duty.  The application submitted in this case is dated 5 December 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.  Title 10 of the United States Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or upgrading of a decoration) either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

4.  The applicant requests award of the Defense Meritorious Service Medal.  However, there are no orders or other evidence on file in his Official Military Personnel File (OMPF) that confirms his entitlement to this award.  In the absence of authority for the award, the applicant may request award of the Defense Meritorious Service Medal under the provisions of 10 USC 1130.  The applicant has been notified by separate correspondence of the procedures for applying for this award under 10 USC 1130.  As a result, the award will not be discussed further in this Record of Proceedings.

5.  The applicant's military service records show that he enlisted in the Regular Army on 25 February 1958.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 11B (Infantryman).  He was subsequently awarded MOS 11F (Operations and Intelligence Specialist).  The applicant served continuously on active duty, attained the rank of sergeant major/pay grade E-9, and was awarded MOS 18Z (Special Operations Senior Sergeant).  He was honorably retired from active duty on 31 August 1985 after completing a total of 27 years, 6 months, and 6 days active service.

6.  The applicant's DA Form 2-1 (Personnel Qualification Record), Item 5 (Oversea Service), shows that he served in Germany from 1 December 1958 through 10 February 1961; the Republic of Korea from 24 November 1964 through 9 December 1965; the Republic of Vietnam from 13 February 1969 through 13 May 1970 and from 5 April 1971 through 10 February 1972; and Saudi Arabia from 16 January 1980 through 8 June 1981.  This item also shows, in pertinent part, that the applicant completed all 5 of these overseas tours.

7.  Item 9 (Awards, Decorations and Campaigns) of the DA Form 2-1 shows, in pertinent part, that he participated in the following campaigns:  Vietnam Counteroffensive Phase VI, Vietnam Counteroffensive Phase VII, TET 69 Counteroffensive, Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Consolidation II.

8.  There are no orders in the applicant’s military service records which show that he was awarded the Purple Heart and the applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.  However, Item 4 (Assignment Considerations) of the applicant’s DA Form 2-1 contains, in pertinent part, the entry “Fragment to right shoulder 690526” and Item 9 (Awards, Decorations and Campaigns) shows, in pertinent part, that he was awarded the Purple Heart (PH).

9.  The applicant's military service records contain a copy of Headquarters, U.S. Army, 1st Special Operations Command (Airborne), Fort Bragg, North Carolina, Permanent Orders 99-1, dated 26 August 1985.  The orders show, in pertinent part, that the applicant was assigned to Company C, 1st Battalion, 5th Special Forces Group (Airborne), 1st Special Forces, Fort Bragg, North Carolina, and was awarded the Meritorious Service Medal (2nd Oak Leaf Cluster) for meritorious service from 1 September 1975 to 31 August 1985.

10.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 3 October 1970.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this document shows, in pertinent part, that he was awarded the Purple Heart.  The applicant also provides a copy of his DD Form 214, with an effective date of 31 August 1985, issued at the time he retired from active duty.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this document shows that he was awarded the Bronze Star Medal with “V” Device (3rd Oak Leaf Cluster), Meritorious Service Medal (2nd Oak Leaf Cluster), Air Medal, Army Commendation Medal (2nd Oak Leaf Cluster), Army Achievement Medal, Good Conduct Medal (9th Award), Vietnam Service Medal, Noncommissioned Officer Professional Development Ribbon with Numeral “5”, Army Service Ribbon, Overseas Service Ribbon with Numeral “3”, Republic of Vietnam Campaign Medal with “1960” Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge, Expert Infantryman Badge, and Master Parachutist Badge.

11.  The applicant also provides a copy Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 1097, dated 19 July 1969 and DA Form 4980-10 (Purple Heart Certificate), dated 19 July 1969, which show that he was awarded the Purple Heart for wounds received in action on
26 May 1969 in the Republic of Vietnam.
12.  The applicant also provides a copy of Headquarters, U.S. Army Forces Command, Fort McPherson, Georgia, Permanent Orders 139-2, dated 28 August 1985 and DA Form 4980-11 (Legion of Merit Certificate), dated 30 August 1985, which show, in pertinent part, that he was assigned to Company C, 1st Battalion, 5th Special Forces Group (Airborne), Fort Bragg, North Carolina, and was awarded the Legion of Merit for exceptionally meritorious conduct in the performance of outstanding services from 1 September 1975 to 31 August 1985.

13.  A review of the applicant's records reveals that he may be entitled to additional awards that are not shown on his DD Form 214.

14.  Army Regulation 600-8-22 (Military Awards), as amended, provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

15.  Appendix B of Army Regulation 600-8-22 lists the campaigns for Vietnam.  This document shows that the applicant participated in the following campaigns:  Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VII, Consolidation I, and Consolidation II; a total of 8 campaigns.

16.  Army Regulation 600-8-22 provides, in pertinent part, 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.

17.  Army Regulation 600-8-22 provides, in pertinent part, for 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, which includes the Vietnam Service Medal.  This Army regulation also provides, in pertinent part, that a silver service star is authorized in lieu of five bronze service stars.

18.  Army Regulation 600-8-22 shows that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  On 25 October 2005, the policy that restricted award of the Overseas Service Ribbon when another campaign or service medal is awarded was eliminated.  Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon.

19.  Army Regulation 614-30 (Overseas Service) prescribes the policies related to overseas permanent change of station moves.  This regulation also governs overseas tour lengths and credit for tour completion.  Table B-1 of the regulation lists overseas areas/countries and their respective tour lengths.

20.  The Republic of Korea - Korea Defense Service Medal is authorized to members of the Armed Forces who have served on active duty in support of the defense of the Republic of Korea from 28 July 1954 to a date to be determined.  Headquarters, U.S. Army Human Resources Command, message, dated
9 February 2004, published implementing instructions for award of the Korea Defense Service Medal.  This message specified criteria for the award of the Korea Defense Service Medal as follows: (a) service members of the armed forces must have served in support of the defense of the Republic of Korea from 28 July 1954 through a future date to be determined by the Secretary of Defense; (b) the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, and all air spaces above the land and water areas; and (c) service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility and have been physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.

21.  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. 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.

22.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  There is no statute of limitations governing requests for award of the Purple Heart.

23.  Army Regulation 600-8-22 states, in pertinent part, that the Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

24.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

25.  Army Regulation 600-8-22 also provides, in pertinent part, that an oak leaf cluster is awarded to denote a second and each succeeding award of certain decorations, among which is the Meritorious Service Medal.

26.  Army Regulation 600-8-22, paragraph 3-2 (Decorations authorized and order of precedence) lists the U.S. Army decorations authorized and the order of precedence.  This paragraph shows, in pertinent part, that the Legion of Merit is higher in order of precedence than the Meritorious Service Medal.

27.  Army Regulation 600-8-22, paragraph 1-18 (Period of award), provides, in pertinent part, that for meritorious service awards, the cited period is limited to the period of service during which the individual served under the recommending command, except in the case of retirement awards and refers the reader to paragraph 1-22. 

28.  Army Regulation 600-8-22, paragraph 1-22 (Recognition upon retirement), provides, in pertinent part, that each individual approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility, and manner of performance.  Meritorious service awards may be awarded, upon retirement, which may include periods of service longer than that served in the recommending command.  It is recommended that such periods be limited to the last 10 years of service.

29.  Army Regulation 600-8-22, paragraph 1-19 (Duplication of awards), states that only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service.

30.  Army Regulation 600-8-22, paragraph 1-20 (Interim awards and awards of a lesser decoration), provides, in pertinent part, that to ensure that a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award, except for retiring U.S. Army general officers.  When a higher award is approved, the approving authority will revoke the interim award using a separate Permanent Order in accordance with Army Regulation 600-8-105 (Military Orders).  The decoration will be returned by the recipient.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to correction of his records to show award of the Purple Heart, Legion of Merit, and Korea Defense Service Medal because the awards were not listed on his DD Form 214 when he retired from active duty.

2.  The evidence of record shows that the applicant was wounded in action on
26 May 1969 in the Republic of Vietnam.  The evidence of record also shows that General Orders awarded him the Purple Heart and that the award was entered on his DD Form 214, with an effective date of 3 October 1970.  Therefore, the applicant is entitled to correction of his DD Form 214, with an effective date of
31 August 1985, to show award of the Purple Heart.

3.  The evidence of record shows that Headquarters, U.S. Army,1st Special Operations Command (Airborne), Fort Bragg, North Carolina, Permanent Orders 99-1, dated 26 August 1985, announced award of the Meritorious Service Medal (2nd Oak Leaf Cluster) to the applicant for meritorious service for the period from 1 September 1975 to 31 August 1985.  The evidence of record also shows that Headquarters, U.S. Army Forces Command, Fort McPherson, Georgia, Permanent Orders 139-2, dated 28 August 1985, announced award of the Legion of Merit to the applicant for exceptionally meritorious conduct in the performance of outstanding services for the period from 1 September 1975 to 31 August 1985.
4.  The evidence of record shows that meritorious service awards may be awarded, upon retirement, which may include periods of service longer than that served in the recommending command and that such period is limited to the last 10 years of service.  The evidence of record also shows that the Legion of Merit is higher in order of precedence than the Meritorious Service Medal.  The evidence of record further shows that to ensure a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award; however, only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service; and when a higher award is approved, the approving authority will revoke the interim award using a separate Permanent Order.  Therefore, in view of the foregoing, the applicant is entitled to correction of his records to show award of the Legion of Merit.  In addition, based on award of the Legion of Merit, the applicant’s records should also be corrected to show revocation of the interim award of the Meritorious Service Medal (2nd Oak Leaf Cluster).

5.  The evidence of record shows that the applicant is entitled to award of the National Defense Service Medal for his honorable active service during the period 1 January 1961 through 14 August 1974.  Therefore, the applicant is entitled to correction of his records to show award of this service medal.

6.  Records show that the applicant served in 8 campaigns in Vietnam. Therefore, he is entitled to correction of his records to show award of 1 silver service star and 3 bronze service stars to be affixed to his Vietnam Service Medal.

7.  The evidence of record shows that the applicant completed 5 overseas service tours.  Therefore, he is entitled to correction of his records to show award of the Overseas Service Ribbon with Numeral “5.”

8.  Records show that, subsequent to 28 July 1954, the applicant completed a 12-month overseas service tour in the defense of the Republic of Korea.  Therefore, the applicant met the qualifying criteria for award of the Korea Defense Service Medal and is entitled to correction of his records to show this foreign service medal.

9.  Records show that the applicant served a total of 25 months in Vietnam.  Therefore, he is entitled to correction of his records to show award of 4 Overseas Service Bars.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
30 August 1988.  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:

___SVW_  ___RTD_  ___DWT_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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:

	a.  revoking Headquarters, U.S. Army, 1st Special Operations Command (Airborne), Fort Bragg, North Carolina, Permanent Orders 99-1, dated 26 August 1985, which announced the interim award of the Meritorious Service Medal
(i.e., Meritorious Service Medal (2nd Oak Leaf Cluster)) for meritorious service for the period from 1 September 1975 to 31 August 1985;

b.  deleting from his DD Form 214, with an effective date of 31 August 1985, the Meritorious Service Medal (2nd Oak Leaf Cluster), Vietnam Service Medal, and Overseas Service Ribbon with Numeral “3”; and

c.  adding to his DD Form 214, with an effective date of 31 August 1985, the Legion of Merit, Purple Heart, National Defense Service Medal, Vietnam Service Medal with 1 silver service star and 3 bronze service stars, Overseas Service Ribbon with Numeral “5”, Republic of Korea – Korea Defense Service Medal, and 4 Overseas Service Bars.




_____Sherri V. Ward______
          CHAIRPERSON




INDEX

CASE ID
AR20060017310
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/21
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19850831
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Length of Service for Retirement
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0009.0000
2.
107.0015.0000
3.
107.0141.0000
4.

5.

6.