IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080006941 


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, correction to his DD Form 214 (Report of Separation from Active Duty) to show his 9 months and 7 days service in Germany, and any award he may be eligible to receive for his service in Germany and in Korea.  He also requests, in effect, correction to his DD Form 214 to show his award of the Silver Star.

2.  The applicant states, in effect, that his DD Form 214 does not reflect his service in Germany nor his medal for his service in Germany.  He also states, in effect, that he was awarded a medal for serving in Korea and the Silver Star for his service in Vietnam and they are not shown on his DD Form 214.  He further states that he departed from Germany on leave on 1 September 1967 and while on leave he received a telegram telling him to report to Fort Campbell, Kentucky, to go to Vietnam.  He never received all of his belongings and military clothes that were in Germany and his records would have been in his duffle bag.  Due to injuries received in the military, he needs his records updated for the medical record. He further states, in effect, that his medical and dental records recorded when and where he was stationed.  

3.  In support of his application, the applicant provides copies of his Standard Form (SF) 601 (Health Record – Immunization Record), an unidentifiable record of treatment form, and his 1 September 1976 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's military records show he enlisted in the Regular Army, in pay grade E-1, on 29 June 1965.  He completed basic combat and advanced individual training and was awarded primary military occupational specialty (MOS) 12A (Pioneer) on 11 November 1965.  He was subsequently awarded primary MOS 94B (Cook) on 19 August 1966.  He was discharged for the purpose of immediate reenlistment on 16 October 1966.  He reenlisted on
17 October 1966, for 4 years. 

3.  The applicant’s records show he completed training and was awarded a secondary MOS of 12B (Combat Engineer) on 25 February 1967.  He served in Germany from 6 December 1966 to 1 September 1967, a period of 8 months and 26 days, with the 12th Engineer Battalion.  Upon his return to the United States, he was assigned to Fort Campbell, Kentucky.  

4.  The applicant served in the Republic of Vietnam from 17 November 1967 to 24 September 1968, with Headquarters and Headquarters Company, 2nd Battalion (Airborne), 506th Infantry.  He served from 25 September 1968 to 25 July 1969, with Headquarters and Headquarters Company, 101st Airborne Division Support Command; and Headquarters and Headquarters Company and Band, 101st Airborne Division Support Command, during seven campaigns.  During his period of service in Vietnam, he served in his primary MOS of 94B.  The applicant served in Vietnam for a total period of 1 year, 8 months, and
9 days.





5.  The applicant submitted an unidentifiable medical treatment record that shows he was stationed in Germany in 1966 and an SF 601 that shows he received 2 immunizations, one on 27 January 1967 and the other on 27 March 1967 while stationed in Germany.

6.  There are no orders in the applicant's military personnel records awarding him the Silver Star.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 41 (Awards and Decorations), does not show award of the Silver Star.

7.  The applicant was discharged for the purpose of immediate reenlistment on 23 July 1970.  He was issued a DD Form 214, that shows in Item 22.c. (Foreign and Sea Service) he was credited with 1 year, 8 months, and 9 days of total foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), lists the following awards:  the Vietnam Service Medal, the Bronze Star Medal, the Vietnam Campaign Medal, and the Army Commendation Medal.  The Silver Star is not shown among his authorized awards.

8.  Item 30 (Remarks), of this DD Form 214, contains the entry “RVN (Republic of Vietnam) Service – 17 Nov 67 to 25 Jul 69” to identify his service in Vietnam.  There is no entry in Item 30 to show he served in Germany.

9.  The applicant reenlisted on 24 July 1970.  He served in Korea from 10 January 1972 to 16 February 1973, a period of 1 year, 1 month, and 7 days.  He was honorably discharged from active duty, in pay grade E-5, on 1 September 1976.

10.  The applicant’s 1 September 1976 DD Form 214 shows in Item 18f (Foreign and/or Sea Service This Period) that he was credited with 1 year, 1 month, and 7 days of total foreign service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) lists the following awards:  the National Defense Service Medal; the Parachutist Badge; the Vietnam Service Medal; the Army Commendation Medal; the Bronze Star Medal; the Armed Forces Expeditionary Medal; the Vietnam Campaign Medal; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Expert Marksmanship Qualification Badge, with Rifle Bar (M-16).  Item 27 (Remarks) lists the following award:  the Sharpshooter Marksmanship Qualification Badge, with Pistol Bar (.45 Caliber).  It also contains the entry “Item 18f Korea” to identify his foreign service this period was in Korea.


11.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to reveal any general orders for award of the Silver Star to the applicant during the time he served in Vietnam.  

12.  Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility and period of eligibility are as follows:  (a) the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, (b) all air spaces above the land and water area. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days, or meet the following criteria:  (1) be engaged in combat during an armed engagement, regardless of the time in the area of eligibility, (2) wounded or injured in the line of duty and required medical evacuation from the area of eligibility, or (3) participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations.  Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for Korea Defense Service Medal eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period.  Service members qualified for the Armed Forces Expeditionary Medal by reasons of service between 1 October 1966 and 30 June 1974, in an area for which the Korea Defense Service Medal was subsequently authorized are eligible for both the Armed Forces Expeditionary Medal and the Korea Defense Service Medal.  Award of the Korea Defense Service Medal for this time period is a one-time exception to policy to comply with section 543 of the National Defense Authorization Act of Fiscal Year 2003, Public Law 107-314. 

13.  Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the Vietnam Service Medal.  The regulation also provides that a silver service star is authorized in lieu of five bronze service stars.



14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant’s unit, Headquarters and Headquarters Company, 2nd Battalion, 506th Infantry, was awarded the Presidential Unit Citation, based on Department of the Army General Orders Number 38, dated 1971.

15.  Department of the Army Pamphlet 672-3 also shows the applicant’s unit, Headquarters and Headquarters Company and Band, 101st Airborne Division Support Command, was awarded the Meritorious Unit Commendation, based on Department of the Army General Orders Number 39, dated 1970; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, based on Department of the Army General Orders Number 43, dated 1970; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, based on Department of the Army General Orders Number 48, dated 1971.

16.  Army Regulation 600-8-22 also provides, in pertinent part, that the Silver Star is awarded is gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As will all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

17.  Army Regulation 635-5, in effect at the time, prescribed the policies and procedures regarding separation documents.  The regulation specified that a DD Form 214 will be prepared for individuals who are retired, discharged, or released from active duty.  The total active duty outside the Continental United States for the period covered by the DD Form 214 and the last overseas theater in which the service was performed would be entered in Item 22.c.  The Item 30 section would be used to complete entries too long for their respective blocks. 

18.  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 evidence confirms the applicant served in Germany from 6 December 1966 to 1 September 1967, a period of 8 months and 25 days.  He was issued a DD Form 214 which only credited him for his service in Vietnam.  Based upon his service in Germany, which also occurred during the period covered by the DD Form 214, dated 23 July 1970, he is entitled to correction to Item 22c to show a total credit of 2 years, 5 months, and 5 days foreign service and RVN, for his last overseas theater.  Correction to Item 22c does not require any adjustment to the other blocks in Item 22 (Statement of Service).  He is also entitled to correction to Item 30, of this DD Form 214, to show “Germany Service - 6 Dec 66 to 1 Sep 67.”

2.  The evidence also confirms the applicant served in Korea while on active duty.  As a result of this service, he qualified for award of the Korea Defense Service Medal.  He is therefore entitled to this award and its addition to his DD Form 214.

3.  The evidence further confirms the applicant served in Vietnam for seven campaigns and is entitled to one silver service star and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal to denote his campaign credit.  These service stars are not shown on the applicant's DD Form 214.  It would be appropriate to add them at this time.

4.  General orders entitled the applicant’s units to award of the Presidential Unit Citation; the Meritorious Unit Commendation; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, during his tenure of assignment in Vietnam.  These unit awards are not shown on his DD Form 214.  He is therefore entitled to have his records corrected to show these unit awards.

5.  The evidence of record shows the applicant served in Germany; however, there is no evidence he served in a unit or a location for which any award was authorized.  He is therefore not entitled to correction to his records to show an award for his service in Germany and its addition to his DD Form 214, dated
23 July 1970.

6.  The applicant's contention that he was awarded the Silver Star is acknowledged; however, the applicant provided no general orders showing he was awarded the Silver Star.  No evidence was found either in his service personnel record or in the ADCARS data base to confirm the applicant was awarded the Silver Star during his tenure in Vietnam and to support addition to his DD Form 214.  

7.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects the applicant’s right to pursue his/her claim for the Silver Star by submitting a request through his/her Member of Congress under the provisions of Title 10, United States Code, section 1130.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 a total credit of 2 years, 5 months, and 5 days in Item 22c (Foreign and/or Sea Service), of the applicant's DD Form 214, dated 23 July 1970;

	b.  amending Item 30 (Remarks), of his DD Form 214, dated 23 July 1970, to show:  “Germany Service - 6 Dec 66 to 1 Sep 67”; and

	c.  providing him a corrected separation document for the period ending
23 July 1970 that shows these corrections.

2.  The Board also recommended correction of his records by:

	a.  awarding the applicant the Korea Defense Service Medal; one silver service star and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal; the Presidential Unit Citation; the Meritorious Unit Commendation; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation;

	b.  adding these awards to his last DD Form 214, dated 1 September 1976; and 

	c.  providing him a corrected separation document for the period 1 September 1976 that shows these awards.

3.  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 providing an award for his service in Germany; award of the Silver Star and its addition to his DD Form 214; and correction to his total foreign service time listed on his DD Form 214, dated 23 July 1970, to show he served in Germany for 9 months and 7 days.



      _________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)                                         AR20080006941



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ABCMR Record of Proceedings (cont)                                         AR20080006941


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