IN THE CASE OF:	  

	BOARD DATE:	  1 JULY 2008

	DOCKET NUMBER:  AR20080005506 


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 award of the Purple Heart and the Bronze Star Medal.  He also requests that his date of separation from active duty be corrected to 15 October 1969.

2.  The applicant states that this correction would allow him to wear the decorations he believes he earned.

3.  The applicant provides a letter from the Disabled American Veterans, his Medical Board (MEBD) Proceedings, and his Physical Evaluation Board Proceedings with allied documents. 

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’s military records show that he enlisted in the Regular Army on 16 August 1967.  He completed his initial active duty for training and was awarded the military occupational specialty of light weapons infantryman (parachutist qualified).

3.  On 26 May 1968, the applicant was assigned to Vietnam.  He served with Company B, 3rd Battalion, 506th Infantry from 4 June 1968 to 10 June 1968, and then served with Company F, 58th Infantry Long Range Patrol.

4.  On 24 December 1968, the applicant’s duty status changed to patient.  He departed Vietnam on 3 January 1969.

5.  The applicant was processed for separation by the Disability Evaluation System (DES).  In the MEBD’s Narrative Summary, it was stated that the applicant “suffered wounds of the chest and fragment wounds of the neck and left leg approximately 1530 hours near Phu Bai, Republic of Vietnam as a result of hostile action.”

6.  The applicant was determined to be physically unfit to perform his duties and was retired for physical unfitness, rated 30 percent disabled.  An AGPZ Form 44, Extract of Special Orders – Physical Disability Retirement – Enlisted Personnel, shows the applicant’s date of retirement as 24 June 1969; a message from The Adjutant General directed the applicant’s placement on the disability retired list on 24 June 1969; and an AGPZ Form 977, Data for Retired Pay, shows the applicant’s placement on the disability retired list on 24 June 1969.

7.  The applicant’s DD Form 214 shows that he was honorably released from active duty on 23 June 1969 and placed on the retired list the following day.  Item 24 of this DD Form 214 shows the applicant was awarded the National Defense Service Medal, the Parachute Badge, the PFDR [Pathfinder] Badge, the Vietnam Service Medal, and the [Republic of] Vietnam Campaign Medal.

8.  The applicant’s military records show that he was awarded the Purple Heart by Headquarters, 22nd Surgical Hospital (MA) General Orders Number 95 dated 22 November 1968 for wounds received in action on 20 November 1968.


9.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) revealed that the applicant was awarded the Silver Star by Headquarters, 101st Airborne Division General Orders Number 5919 dated
27 May 1969 for gallantry in action in the Republic of Vietnam on 20 November 1968.  He was also awarded a Silver Star by the same command per General 
Orders Number 7641 dated 27 June 1969 for the same incident on 20 November 1968; however, this order was revoked by the same command per General Orders Number 9220 dated 20 July 1969.

10.  Department of the Army Pamphlet 672-3, Unit Citation and Campaign Participation Credit Register, shows the pertinent identified campaign periods, for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Those periods are:  Counteroffensive IV (2 April 1968 through 30 June 1968); Counteroffensive, Phase V (1 July 1968 through 1 November 1968); and Counteroffensive, Phase VI, (2 November 1968 through 22 February 1969).

11.  Department of the Army General Order Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

12.  Army Regulation 600-8-22 provides that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch, Total Army Personnel Command has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

13.  Army Regulation 600-8-22 also provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than excellent was disqualifying.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of non-favorable consideration and permits the individual to respond.  At that time, non-favorable consideration was normally noted on the DA Form 20.


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.

DISCUSSION AND CONCLUSIONS:

1.  General Orders confirm the applicant was awarded the Purple Heart and Silver Star.  As such, he is entitled to correction of his DD Form 214 to add these awards.  

2.  While the applicant was awarded a second Silver Star, those orders were revoked since those orders were for the same action for which the applicant was given his first Silver Star.  Therefore, the revocation of the orders for the second Silver Star is appropriate.

3.  There are no orders or indication that the applicant was awarded the Bronze Star Medal.  As such, there is insufficient evidence in which to grant this portion of his request.

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

5.  The applicant’s contention that he was separated from active duty on 15 October 1969 is not supported by the evidence of record.  Every separation document contained in the applicant’s record shows that he was released from active duty on 23 June 1969 and placed on the Retired List the following day by reason of permanent disability.

6.  However, the applicant is entitled to additional awards which he did not request.  The applicant is entitled to three bronze service stars for wear on his already awarded Vietnam Service Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

7.  In addition, the applicant was an infantryman serving with an Infantry Long Range Patrol unit.  The applicant obviously served in active ground combat based on the fact that he was wounded in action.  As such, the preponderance of evidence shows that the applicant is entitled to the Combat Infantryman Badge.

8.  Also, since the applicant received all excellent conduct and efficiency ratings, and there is no evidence of him committing any violations of regulations or laws during his enlistment, it is apparent that he should have been awarded the Good Conduct Medal.

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 the Army Good Conduct Medal for the period 16 August 1967 through 23 June 1969; 	

	b.  awarding the Combat Infantryman Badge effective 20 November 1968; and

	c.  amending his DD Form 214 to add Army Good Conduct Medal, the Combat Infantryman Badge, the Silver Star, the Purple Heart, three bronze service stars for wear on his already-awarded Vietnam Service Medal, 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 correcting his DD Form 214 to show that he was separated from active duty on 15 October 1969 or that he was awarded the Bronze Star 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)                                         AR20080005506



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ABCMR Record of Proceedings (cont)                                         AR20080005506



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