IN THE CASE OF:	  

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080008385 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show two awards of the Army Commendation Medal and the Bronze Star Medal.

2.  The applicant states, in effect, that it was a mistake that these awards were not placed on his DD Form 214.

3.  The applicant provides orders, citations, and award certificates for two awards of the Army Commendation Medal; orders, a citation, and an award certificate for the Bronze Star Medal; an Honorable Discharge certificate; and a copy of his DD Form 214 in support of his application.

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 was inducted into the Army of the United States on 18 January 1967.  He arrived in Vietnam on 3 March 1968.  He served as a cook assigned to Headquarters and Headquarters Company, 4th Battalion, 39th Infantry of the 9th Infantry Division, in Vietnam from 8 March 1968 through 9 January 1969.  On 10 January 1969, the applicant was released from active duty in the temporary rank of specialist five after completing 1 year, 11 months, and 23 days of creditable active service with no time lost.

3.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the "Vietnam Unit Citation" as authorized awards.

4.  Headquarters, 9th Infantry Division, General Orders Number 11668, dated 30 December 1968, show the applicant received the Army Commendation Medal for meritorious service during the period February 1968 to November 1968 in Vietnam.  These orders are contained in the U. S. Army Human Resource Command's Awards and Decorations Computer Assisted Retrieval System (ADCARS).
 
5.  Headquarters, 9th Infantry Division, General Orders Number 200, dated 6 January 1969, show the applicant received the Bronze Star Medal for outstanding achievement during the period 28 November 1968 to 29 November 1968 in Vietnam.  These orders are contained in ADCARS.

6.  Headquarters, 9th Infantry Division, General Orders Number 443, dated 13 January 1969, show the applicant received the Army Commendation Medal for outstanding achievement during the period 28 November 1968 to 29 November 1968 in Vietnam.  These orders are contained in ADCARS.

7.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His records show he received conduct and efficiency ratings of "excellent" throughout his service.

8.  Records show the applicant participated in four campaigns during his assignment in Vietnam.

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the applicant's unit is eligible for award of the Valorous Unit Award for actions during the period 6-12 May 1968 based on Department of the Army General Orders Number 43, dated 1970.

10.  Department of the Army Pamphlet 672-3 shows the applicant's unit is eligible for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation (1 December 1966 to 30 June 1968) based on Department of the Army General Orders Number 31, dated 1969.  His unit is eligible for a second award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation (1 July 1968 to 13 November 1968) based on Department of the Army General Orders Number 31, dated 1969.  His unit is eligible for a third award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation (January to June 1969) based on Department of the Army General Orders Number 59, 1969.

11.  Department of the Army Pamphlet 672-3 also shows the applicant's unit is eligible for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 59, dated 1969.

12.  Paragraph 6 (Miscellaneous Information) of Department of the Army Pamphlet 672-3 states that only one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation may be worn; however, records should show entitlement to all authorized awards of this foreign unit award.

13.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in general orders.

14.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of 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 service medal.

15.  Paragraph 1-19 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.



DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant received the Army Commendation Medal for meritorious service for the period February 1968 to November 1968.  Therefore, his DD Form 214 should be corrected to show this medal.

2.  Orders show the applicant received an award of the Army Commendation Medal for outstanding achievement (28 November 1968 to 29 November 1968) and he received an award of the Bronze Star Medal for outstanding achievement (28 November 1968 to 29 November 1968).  Since the governing regulation states that only one decoration will be awarded for the same achievement, and the Bronze Star Medal is a decoration of higher degree, this award of the Army Commendation Medal is not valid in accordance with the governing regulation.  Therefore, his DD Form 214 should be corrected to show the Bronze Star Medal.

3.  The applicant was separated in the temporary rank of specialist five with almost 24 months of creditable active service with no time lost.  It appears the applicant met the eligibility criteria for the first award of the Good Conduct Medal for the period 18 January 1967 through 10 January 1969 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his records should be corrected to show this award.

4.  The applicant participated in four campaigns during his assignment in Vietnam which makes him eligible for four bronze service stars to be worn with his previously-awarded Vietnam Service Medal.

5.  The applicant’s unit received the Valorous Unit Award and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.

6.  The applicant's unit was awarded three awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and so he is authorized to wear one of those awards.  However, his DD Form 214 should be amended to show three awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



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 first award of the Good Conduct Medal for the period 18 January 1967 through 10 January 1969; and 

	b.  adding the Good Conduct Medal, one award of the Army Commendation Medal, the Bronze Star Medal, the Valorous Unit Award, three awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars for wear on his already-awarded Vietnam Service Medal to his DD Form 214.

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 a second award of the Army Commendation Medal.



      ____________xxx_____________
                 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)                                         AR20080008385



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ABCMR Record of Proceedings (cont)                                         AR20080008385



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