IN THE CASE OF:	  

	BOARD DATE:	    20 May 2008

	DOCKET NUMBER:  AR20080004446 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show award of the Purple Heart and a second Army Commendation Medal.

2.  The applicant states he just found out that these awards were not included on his DD Form 214. 

3.  The applicant provides copies of his DD Form 214, orders awarding him the Purple Heart, and a letter from the Veterans Administration [today known as the Department of Veterans Affairs] dated 2 November 1971.

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.  On 18 September 1969, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).                

3.  Special Orders Number 308, United States Army Training Center, Infantry, and Fort Lewis, Washington, dated 4 November 1969, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle (M-14) Bar.

4.  Special Orders Number 219, United States Army Training Center, Armor, Fort Knox, Kentucky, dated 17 December 1969, awarded the applicant the First Class Badge for the M60 machine gun [Sharpshooter Marksmanship Qualification Badge with Machinegun Bar].

5.  On 31 January 1970, the applicant was assigned for duty as a scout driver with the 2nd Squadron, 2nd Armored Cavalry Regiment, in the Federal Republic of Germany.

6.  On 28 September 1970, the applicant was reassigned for duty as a scout driver with C Troop, 1st Squadron, 1st Cavalry Regiment, 23rd Infantry Division, in the Republic of Vietnam.

7.  General Orders Number 15911, 23rd Infantry Division, dated 9 December 1970, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 30 November 1970.

8.  General Orders Number 04985, 23rd Infantry Division, dated 3 May 1971, awarded the applicant the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile force during the period from 1 October 1970 to 31 March 1971.

9.  On or about 6 September 1971, the applicant returned to the United States.

10.  On 10 September 1971, the applicant was released from active duty.  He had attained the rank of sergeant, pay grade E-5 and had completed 1 year, 
11 months and 23 days of creditable active duty.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, lists his awards as the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, Vietnam Campaign Medal with "1960-" Device, Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with [M-16] Rifle Bar.  It does not show award of the Purple Heart or a second award of the Army Commendation Medal. 

12.  There is no available evidence in the applicant’s records or on the Awards and Decorations Computer Assisted Retrieval System (ADCARS) showing that he was awarded a second Army Commendation Medal. 

13.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  An Oak Leaf Cluster denotes subsequent awards.

14.  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 the 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.

15.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

16.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were excellent.  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 

17.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying. 

18.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following two campaign periods: the Vietnam Counteroffensive, Phase VII and the Consolidation I.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 1st Squadron, 1st Cavalry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders Number 42, dated 1972, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence of record showing that the applicant was awarded a second Army Commendation Medal.  Therefore, his request to correct his records to show this award should be denied.  However, should the applicant have, or be able to obtain a copy of the orders awarding him a second Army Commendation Medal, or other substantiating evidence, he may submit another application for consideration.

2.  While the available evidence is insufficient for awarding the applicant a second Army Commendation Medal, this in no way affects the applicant’s right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

3.  General Orders show that the applicant was awarded the Purple Heart.  Therefore, his records should be corrected to show this award.

4.  The applicant’s records clearly show that he distinguished himself in the performance of his military service by attaining the rank of sergeant, award of the Army Commendation Medal, and receiving all excellent ratings for conduct and efficiency.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

5.  Records show that the applicant participated in two campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of two bronze service stars to be affixed to his Vietnam Service Medal.

6.  The applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.   

7.  Special Orders show that the applicant was awarded the Expert Marksmanship Qualification Badge with [M-14] Rifle Bar.  Therefore, his records should be corrected to show this award.

8.  Special Orders show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  Therefore, his records should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X __  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.  awarding him the Army Good Conduct Medal for the period from 
18 September 1969 to 10 September 1971; and

	b.  showing that in addition to the awards shown on his DD Form 214, his authorized awards include the Purple Heart, Army Good Conduct Medal, two bronze service stars to be affixed to his already awarded Vietnam Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 award of a second Army Commendation Medal.  




       _    ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004446



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