IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080009011 


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, through counsel, in effect, reconsideration of his earlier appeal to correct his military records to show that he served in Vietnam and that he is entitled to the Vietnam Service Medal and the Combat Infantryman Badge.

2.  The applicant has remained silent and has deferred to counsel to present his case for correction of his records to show his service in Vietnam and award of the Vietnam Service Medal and the Combat Infantryman Badge.

3.  In support of his request, the applicant provides, through counsel, a copy of a letter written in behalf of the applicant to a member of the Congressional Liaison Unit, dated 12 March 2008; a copy of a privacy release form; and a copy of four DA Forms 2139, Military Pay Voucher, for the pay periods 1-31 March, 
1-30 April, 1-31 May, and 1-30 June 1965.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant’s earlier appeal to correct his military records to show that he served in Vietnam and that he is entitled to the Vietnam Service Medal and the Combat Infantryman Badge. 

2.  Counsel states, in effect, that he believes the decision not to award the applicant the Vietnam Service Medal and the Combat Infantryman Badge was incorrect.  Newly secured documents will show that the veteran was getting 
hostile fire pay while he was stationed in Vietnam as he claimed all along.  Newly secured documents will also show that he was assigned to the 119th Aviation Company from March 1965 to June 1965.

3.  Counsel provides those documents which are listed in Item 3 in the section above.

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.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR), in Docket Number AR20050003612, on 5 January 2006.

3.  The applicant’s record shows he enlisted in the Regular Army on 1 April 1963. After completion of his basic combat and advanced individual training he was awarded the military occupational specialty (MOS), 11B (Light Weapons Infantryman).

4.  The applicant was honorably released from active duty, on 26 February 1966, under the provisions of Army Regulation 635-205, as an overseas returnee, prior to the expiration of his term of service.  He was separated in the rank/pay grade, Private First Class, E-3.  On the date he was released from active duty, he had completed 2 years, 10 months, and 26 days active military service, with no days time lost.

5.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, shows he was awarded:  the Expert Marksmanship Qualification Badge, with Rifle Bar
(M-14 Rifle).  No other awards are shown on the applicant’s DD Form 214.
6.  Item 17, of the military pay vouchers the applicant provided for the pay periods 1-31 March, 1-30 April, 1-31 May, and 1-30 June 1965 show he was paid hostile fire pay.  Item 11 (Remarks), of the military pay voucher for the period 1-31 March 1965 shows the applicant arrived in Vietnam on 23 February 1965.  Item 11 of the military pay voucher for the period 1-30 June 1965 shows the applicant departed from Vietnam on about 10 June 1965.  Item 10 (Organization and Address), of the military pay vouchers he provided for the pay periods 1-31 March, 1-30 April, 
1-31 May, show he was assigned or attached to the 119th Aviation Company.  The military pay voucher the applicant submitted for the period 1-30 June 1965 shows he returned to his unit of assignment in Hawaii, Company B, 2nd Battalion, 27th Infantry Regiment.

7.  Based on military pay vouchers submitted by the applicant in support of his request, it appears he served in Vietnam from 23 February through 10 June 1965 with the 119th Aviation Company (Airmobile).

8.  While in Vietnam, the applicant participated in the following two campaigns of the Vietnam War:  the Vietnam Advisory Campaign, which extended from 15 March 1962 through 7 March 1965; and the Vietnam Defense Campaign, which extended from 8 March through 24 December 1965.

9.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in its
Appendix B and states that authorized bronze service stars will be worn on the appropriate service medal, in this case, the Vietnam Service Medal.

10.  Army Regulation 600-8-22 as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

11.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  

12.  Item 24.c. (Foreign and/or Sea Service), of the applicant’s DD Form 214, shows he served 2 years, 7 months, and 23 days foreign service.  The Board acknowledged his service as an infantryman with the 2nd Battalion, 

27th Infantry in Hawaii; however, based on a lack of available evidence, the Board denied the applicant’s claim for recognition of his service in Vietnam and award of the Vietnam Service Medal during its earlier consideration of the applicant’s request.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Armed Forces Expeditionary Medal is authorized for participants in military operations within a specific geographic area during a specified time period.  Paragraph 2-13d specifically provides that individuals qualified for the Armed Forces Expeditionary Medal for service in Vietnam from 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal.  Upon request, a unit personnel officer may award the Vietnam Service Medal in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual.  No person will be entitled to both awards for Vietnam Service.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer personnel 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 of the Total Army Personnel Command [now the Human Resources 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.

15.  Army Regulation 15-185, the regulation under which the ABCMR operates, states that an applicant may request reconsideration of an ABCMR decision under the following circumstances:  "a. If the ABCMR receives the request for reconsideration within 1 year (emphasis added) of the ABCMR's original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration.  If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice.  If no new evidence is found, the ABCMR staff will return the application to the applicant without action"; and b. If the ABCMR receives a request for reconsideration more than 1 year (emphasis added) after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  According to the applicable regulation, if the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.  In the interest of justice and equity, this provision of the applicable regulation is being waived in view of the compelling evidence the applicant and counsel have submitted with their request for reconsideration.

2.  The evidence shows that the applicant served in Vietnam from 23 February through 10 June 1965 with the 119th Aviation Company (Airmobile) and participated in two campaigns of the Vietnam War.  He is therefore entitled to award of the Armed Forces Expeditionary Medal; however, since the applicant has specifically requested that he be awarded the Vietnam Service Medal, award of the Vietnam Service Medal, with two bronze service stars, is granted and will be added to his DD Form 214.

3.  Based on the applicant’s service in Vietnam, a remark will be added to Item 32, of the applicant’s DD Form 214, as follows:  “Service in Vietnam:  23 February through 10 June 1965.”

4.  The evidence shows that the applicant served honorably on active duty during one of the declared periods for award of the National Defense Service Medal.  He is therefore entitled to award of the National Defense Service Medal and to have it added to his DD Form 214.

5.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that an applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental or smaller size, and must have served in active ground combat while assigned or attached to this infantry unit.

6.  The applicant held an infantry MOS in a company-sized unit while he served in Vietnam; however, the company-sized unit was an aviation company.  Even if he served in active ground combat while assigned or attached to this aviation company, he was not eligible for award of the Combat Infantryman Badge at the time and he is not now eligible for award of the Combat Infantryman Badge.

7.  Based on the available evidence, the applicant is not entitled to award of the Combat Infantryman Badge and to have it added to his DD Form 214.

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 amendment of the ABCMR’s decision in Docket Number AR2050003612 dated 5 January 2006 and grant partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

      a.  adding the Vietnam Service Medal, with two bronze service stars, and the National Defense Service Medal to the applicant's DD Form 214; and 
      
      b.  annotating Item 32 (Remarks), of the applicant’s DD Form 214, to show the entry, “Service in Vietnam:  23 February through 10 June 1965.”

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 Combat Infantryman Badge and its addition to his DD Form 214.



      _________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)                                         AR20080009011



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ABCMR Record of Proceedings (cont)                                         AR20080009011



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