IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080006761 


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 that he be awarded 17 Air Medals, the Good Conduct Medal, the Purple Heart, the Combat Infantryman Badge, a "second bronze star for the voluntary unit" and to have his pay grade listed as sergeant (E-5) on his DD Form 214 (Report of Separation from the Armed Forces of the United States).

2.  The applicant states, in effect, that he went before a promotion board for sergeant (E-5) in July 1971 and was selected for promotion to the higher grade.  He was wounded in July 1971; he was in the field and required a bandage.  He never went to a hospital.  He was infantry trained but upon arrival in Vietnam volunteered to be an aerial observer.  He flew with the 3rd Squadron, 5th Cavalry Regiment, Hunter/killer team daily and logged over 435 mission hours.

3.  The applicant provides a copy of his DD Form 214.

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 entered active duty on 17 September 1970, completed training, and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  Headquarters, Army Training Center Engineer and Fort Leonard Wood, Special Orders Number 314, dated 10 November 1970, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  Headquarters, United States Army Vietnam memorandum, dated 4 October 1971, authorized the members of the applicant's unit to accept and wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

5.  On 21 November 1971 Headquarters, 3rd Brigade, 101st Airborne Division, published an accelerated promotion list for enlisted personnel to pay grade E-5.  The applicant’s name is included on this list.

6.  Headquarters, 101st Airborne Division, General Orders Number 12142, dated 15 December 1971, awarded the applicant the Bronze Star Medal for meritorious service in Vietnam.  These orders list the applicant as a sergeant as does the Bronze Star Medal Certificate issued with this award.

7.  Headquarters, 101st Airborne Division, General Orders Number 12-151, dated 22 December 1971, awarded the applicant the Combat Infantryman Badge.

8.  Headquarters, 101st Airborne Division, Special Orders Number 32, dated 1 February 1972, reassigned the applicant to Fort Carson, Colorado as a sergeant.

9.  A DA Form 2962 (Security Termination Statement and Debriefing Certificate), dated 3 February 1972, shows the applicant's pay grade as E-5. 

10.  Headquarters, 4th Infantry Division Special Orders Number 73, dated 13 March 1972, transferred the applicant to the separation transfer point at Fort Carson, Colorado.  His rank is listed as sergeant.

11.  The applicant was honorably separated from active duty on 15 March 1972.  His DD Form 214 lists his rank and grade as specialist four, E-4.  It lists his awards as the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, and the Republic of Vietnam Campaign Medal with "1960" Device.

12.  The applicant's service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

13.  A review of the Vietnam Casualty List failed to locate any reference to the applicant.

14.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to locate a record of award of either the Purple Heart or the Air Medal.

15.  The applicant's DA Form 20 (Enlisted Qualification Record) provides the following:

	a.  the applicant was advanced to specialist four (E-4) on 10 May 1971;

	b.  he served in Vietnam from 25 February 1971 through 24 February 1972 with assignment to D Troop, 3rd Squadron, 5th Cavalry Regiment, 9th Infantry Division;

	c.  his conduct and efficiency ratings are listed exclusively as excellent; and

	d.  his authorized awards are listed as the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with "1960" Device, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

16.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  In pertinent part, it states that:

	a.  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.  At that time, a single conduct or efficiency rating of less than excellent was disqualifying; although, a "Good" academic mark in a service school was not 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 unfavorable consideration and permits the individual to respond.  At that time, non-favorable consideration was normally noted on the DA Form 20;

	b.  the Air Medal is awarded in time of war for heroism, for meritorious achievement and for meritorious service (sustained operations).  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required; 

	c.  the Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record;
and

	d.  authorizes a bronze service star, based on qualifying service, for each designated campaign listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal.  The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal. Based on the applicant's dates of service in Vietnam, Appendix B indicates he participated during the following three campaign periods:  the Counteroffensive Phase VII, 1 July 1970 – 30 June 1971; the Consolidation I, 1 July 1971 – 30 November 1971; and the Consolidation II, 1 December 1971 – 29 March 1972.

17.  U.S Army Vietnam (USARV) Regulation 672-1 provided, in pertinent part, guidelines for award of the Air Medal. It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty five Category I missions (air assault and equally dangerous missions) was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  Nothing created an entitlement to the award.  


DISCUSSION AND CONCLUSIONS:

1.  The available record contains no documentation to support the applicant's contention that he was wounded as the result of hostile action.  Without a record of treatment for a wound sustained as a result of enemy action, entitlement to the Purple Heart cannot be established.

2.  The available record contains no documentation to support the applicant's contention that he served as an aerial observer, was recommended for award of the Air Medal, or that he flew the number of hours appropriate to warrant award of 17 Air Medals. 

3.  The available record shows the applicant was selected for promotion to sergeant (E-5) with an effective date of 19 November 1971.  All documentation related to his awards, transfers, and his separation processing show the applicant as a sergeant.  Therefore, it is appropriate to correct DD Form 214 to show he was promoted to the rank and pay grade of sergeant, E-5.

4.  The applicant distinguished himself by his conduct, efficiency and fidelity as evidenced by his combat service, his conduct and efficiency ratings, his personal decorations, and his promotion to E-5.  The record contains no indication of any disqualifying incidents or recommendations.  It is appropriate to award the applicant the Good Conduct Medal for his period of service from 17 September 1970 through 15 March 1972.

5.  The applicant served in Vietnam during three campaigns and is authorized to wear three bronze service stars on his Vietnam Service Medal.

6.  In addition to the awards listed on the applicant’s DD Form 214, the applicant is authorized the Bronze Star Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

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.  showing that the applicant was a sergeant (E-5) at the time of separation; 

	b.  awarding the applicant the Good Conduct Medal for the period 17 September 1970 through 15 March 1972;

	c.  that, in addition to awards listed on the DD Form 214, the applicant is also authorized the Bronze Star Medal, the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars, and to wear three bronze service stars on his 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 award of the Purple Heart and Air Medals.  




      _______ _   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)                                         AR20080006761



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ABCMR Record of Proceedings (cont)                                         AR20080006761



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