RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012845 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his grade as E-4 and to add the Combat Infantryman Badge.

2.  The applicant states that mistakes were made because of the rush to leave Vietnam.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 11 February 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was promoted to Private First Class, E-3 on 3 August 1969.

3.  The applicant arrived in Vietnam and was assigned to the 1st Battalion, 52d Infantry, 198th Infantry Brigade on 8 August 1969.  He performed duties as an infantry direct fire crewman and as an ammunition bearer.

4.  There are no orders promoting the applicant to Specialist Four, E-4 in his records, and his DA Form 20 (Enlisted Qualification Record) does not show he was promoted to Specialist Four.

5.  Headquarters, Americal Division General Orders Number 11180, dated        23 August 1970, awarded the applicant the Army Commendation Medal (1st Oak Leaf Cluster) for meritorious service in connection with military operations against a hostile force for the period September 1969 through September 1970.  These orders show his rank as Specialist Four.  There is also no evidence that he was ever awarded the basic Army Commendation Medal.  Item 41 (Awards and Decorations) of his DA Form 20 shows he was awarded the basic Army Commendation Medal on these orders.

6.  The applicant departed Vietnam on 9 September 1970 after being credited with participation in four campaigns.  His DA Form 137 (Installation Clearance Record) shows his rank as Specialist Four.  His reassignment orders, dated        9 September 1970, show his rank as Private First Class; however, his release from active duty orders, dated 14 September 1970, show his rank as Specialist Four.  Other documents dated near his separation date also show his rank as Specialist Four.

7.  The applicant was honorably released from active duty on 14 September 1970 after completing 1 year, 7 months, and 3 days of creditable active service with no lost time.  Item 5a (Grade Rate or Rank) of his DD Form 214 shows his rank as Private First Class; item 5b (Pay Grade) shows his grade as E-3, and item 5c (Date of Rank) shows his date of rank as 3 August 1969.

8.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and two overseas bars.

9.  The applicant’s records contain no derogatory information.  His DA Form      20 shows his conduct and efficiency were rated as “excellent” throughout his enlistment.

10.  Army Regulation 600-8-22 (Military Awards) provides for award of the Combat Infantryman Badge to a Soldier who is an infantryman satisfactorily performing infantry duties, who is assigned to an infantry unit during such time as the unit is engaged in active ground combat, and who actively participates in such ground combat.  Campaign or battle credit alone is not sufficient for award of the CIB.

11.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

12.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier’s conduct and efficiency ratings must have been rated as “excellent” for the entire period of qualifying service.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign  Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that, at the time of the applicant's assignment to the 1st Battalion, 52 Infantry it was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 24 August 1969 through                  31 December 1969 and for the period 31 March 1970 through 30 June 1970 on Department of the Army General Orders Number 42, dated 1972.  It states that not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual.  Although multiple awards of this unit citation badge may not be worn, official military personnel and historical records will indicate all awards received.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders promoting the applicant to Specialist Four in his records, and his DA Form 20 does not show that he was promoted to Specialist Four.  However, there is some evidence of record to show that he was promoted to Specialist Four.

2.  Headquarters, Americal Division General Orders Number 11180, dated        23 August 1970, show his rank as Specialist Four.  His DA Form 137 shows his rank as Specialist Four.  Although his reassignment orders, dated 9 September 1970, show his rank as Private First Class, his release from active duty orders, dated 14 September 1970, show his rank as Specialist Four.  Other documents dated near his separation date also show his rank as Specialist Four.

3.  Because most of the documents at the end of his service show the applicant’s rank as Specialist Four, any reasonable doubt arising from the unavailability of promotion orders should be resolved in his favor.  His DD Form 214 should be amended to show his rank and grade as Specialist Four, E-4.  Unless the applicant can furnish definite evidence on when he was promoted, his DD Form 214 should be amended to show his date of rank as 23 August 1970, the earliest date of a document that shows his rank as Specialist Four.

4.  There is insufficient evidence that would warrant adding the Combat Infantryman Badge to the applicant’s DD Form 214.  He was an infantryman, he was assigned to an infantry unit, and he performed infantry duties; however, there is insufficient evidence to show that he actively participated in ground combat.  He was awarded the Army Commendation Medal for meritorious 

service in connection with military operations against a hostile force; however, that service “in connection with military operations” could have been carried out from a rear position and therefore is not evidence to show he actively participated in active ground combat.

5.  The applicant was credited with participation in four campaigns.  His DD Form 214 should be amended to show he is authorized to wear the Vietnam Service Medal with four bronze service stars.

6.  The applicant completed 19 months of creditable active service with no lost time and no derogatory information in his records.  His conduct and efficiency were rated as “excellent” throughout his enlistment.  It appears he met the eligibility criteria for award of the Army Good Conduct Medal.

7.  The applicant was assigned to a unit during a period of time that unit was twice awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  He is authorized to wear one of those awards; however, both awards should be listed on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__slp___  __pms___  __lcb___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  amending items 5a, 5b, and 5c of his DD Form 214 to show his rank and grade as Specialist Four, E-4, with a date of rank of 23 August 1970;

     b.  awarding him the first award of the Army Good Conduct Medal for the period 11 February 1969 through 14 September 1970; and


     c.  amending his DD Form 214 to add the Army Good Conduct Medal and two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and to show he is authorized to wear four bronze service stars on his already-awarded Vietnam Service Medal.

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 adding the Combat Infantryman Badge to his DD Form 214.




	__Shirley L. Powell___
          		CHAIRPERSON




INDEX

CASE ID
AR20070012845
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.00
2.
107.0111
3.

4.

5.

6.