IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080005964 


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, in effect, that Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his separation document (DD Form 214) be corrected by adding the Combat Infantryman Badge (CIB), two awards of the Air Medal (AM), and the Bronze Star Medal (BSM).

2.  The applicant states, in effect, that he was awarded the CIB, AM (2nd Award), and BSM while serving in the Republic of Vietnam (RVN). 

3.  The applicant provides a copy of his DD Form 214 and Enlisted Qualification Record (DA Form 20) in support of his request.

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 he was inducted into the Army of the United States and entered active duty on 10 September 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist).  His DA Form 20 confirms he served in the RVN from 3 September 1970 to 2 September 1971.  

3.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his RVN tour, he served with Company E, 2nd Battalion, 501st Infantry Regiment.  Item 38 also shows he received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments. 

4.  The applicant’s record is void of any derogatory information or a unit commander disqualification that would have precluded the applicant from receiving the AGCM.  The record does contain Headquarters, United States Army Training Center, Infantry, and Fort Lewis Special Orders (SO) Number (#) 353, dated 19 December 1969, which confirms the applicant qualified as a Marksman with the M-60 machinegun.  It also contains the following four award orders issued by Headquarters, 101st Airborne Division (Airmobile) that authorized the awards indicated:  General Orders (GO) # 2748, dated 4 April 1971 (Army Commendation Medal (ARCOM)); GO # 8887, dated 24 August 1971 (ARCOM); GO # 9040, dated 30 August 1971 (AM); and SO # 243, dated 31 August 1971 (CIB).  His record is void of any orders or other documents that indicate he was recommended for or awarded a second AM or the BSM.

5.  On 5 September 1971, the applicant was honorably separated after completing a total of 1 year, 11 months, and 26 days of creditable active military service.  Item 24 of the DD Form 214 he was issued at the time shows he earned the following awards:  National Defense Service Medal; Vietnam Service Medal; Expert Marksmanship Qualification Badge with Rifle (M-14) Bar; Sharpshooter Marksmanship Qualification Badge with Rifle (M16) Bar; and the ARCOM.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 contains guidance on award of the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, the applicant was credited with participating in the Vietnam Counteroffensive Phase VII and Consolidation I campaigns.


7.  Paragraph 3-15 of the awards regulation provides that the BSM is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  An award recommendation (DA Form 638) must be submitted and approved by the proper authority to authorize award of the BSM. 

8.  Paragraph 3-16 of the awards regulation contains guidance on the AM.  It states, in pertinent part, that it is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight. The AM is awarded to any person who, while serving in any capacity in or with the U.S. Army, will have distinguished himself or herself by meritorious achievement while participating in aerial flight. Awards may be made to recognize single acts of merit or heroism, or for meritorious service.  The version of the awards regulation in effect at the time the applicant served provided for awarding an Oak Leaf Cluster to denote the second and subsequent awards of the AM.

9.  Chapter 4 of the awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  The regulation in effect at the time of the applicant's separation stipulated that in order to qualify for the AGCM, a member must have had "Excellent" conduct and efficiency ratings at all active duty assignments.

10.  Paragraph 9-19 of the awards regulation contains guidance on award of the RVN Campaign Medal with Device (1960).  It states, in pertinent part, that this award is authorized for members who served in the RVN for 6 months or more during the period 1 March 1961 through 28 March 1973.  

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


12.  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.  The applicant’s claim that Item 24 of his DD Form 214 should be corrected to show the CIB, two awards of the AM, and the BSM has been carefully considered and found to have partial merit.  The evidence of record contains orders that awarded the applicant  two ARCOMs, the AM, and the CIB.  As a result, it would be appropriate to add these awards to his separation document.  

2.  However, the applicant's record is void of any order or other documents that indicate he was ever recommended for or awarded the BSM by proper authority, or that he received a second award of the AM during his active duty tenure.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

3.  The evidence of record does confirm the applicant received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments, and his record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 10 September 1969 to 5 September 1971, and to add this award to his record and separation document at this time.

4.  The evidence of record also confirms that based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation, RVN Campaign Medal with Device 1960, and 2 bronze service stars with his VSM.  It also shows the he qualified for the Marksman Marksmanship Qualification Badge with Machinegun Bar.  Therefore, it would also be appropriate to add these awards to his record and separation document at this time. 

5.  The applicant is advised that while the available evidence is insufficient to award him a second award of the AM and/or the BSM, he has not yet exhausted all available avenues in pursuing his claim of entitlement to these awards.  By law, he may pursue these awards by submitting a request, with award recommendations, and supporting evidence through a Member of Congress under the provisions of 10 USC 1130, an option he may still wish to pursue.  

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 his qualifying period of honorable active duty service from 10 September 1969 to 5 September 1971; 
   
   b.  amending Item 24 of the DD Form 214 by deleting the current entry and replacing it with the entry:  National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Army Commendation Medal 1st Oak Leaf Cluster (2nd Award), Air Medal, Army Good Conduct Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with Device 1960,  Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge, Expert Marksmanship Qualification with Rifle (M-14) Bar, Sharpshooter Marksmanship Qualification with Rifle (M-16) Bar, and Marksman Marksmanship Qualification with Machinegun Bar; and 
   
   c.  issuing him a correction to his separation document that reflects these changes.


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 the second award of the Air Medal and award of 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)                                         AR20080005964



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ABCMR Record of Proceedings (cont)                                         AR20080005964



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