IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009494 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Combat Infantryman Badge (CIB) and the Bronze Star Medal (BSM).

2.  The applicant states, in effect, that these awards were omitted from his DD Form 214. 

3.  The applicant provides a copy of his DD Form 214; a copy of a letter from the National Personnel Records Center, dated 31 January 2008; a copy of his CIB orders; a letter from his former executive officer; a copy of a newspaper article; a copy of his Vietnam Combat Certificate; and a copy of his DA Form 20 (Enlisted Qualification Record).

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.  On 18 May 1970, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist four/E-4.  On 23 December 1971, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  On 1 May 1976, he was honorably discharged from the USAR upon completion of his statutory military obligation.

3.  The applicant served in the Republic of Vietnam (RVN) from 12 October 1970 through 11 October 1971.  He performed duties as a rifleman, cannoneer, and assistant gunner with several units:  Company D, 2nd Battalion (Air Mobile), 5th Cavalry; Headquarters and Headquarters Battery (HHB), 7th Battalion, 8th Artillery; and HHB, 5th Battalion, 42nd Artillery.  

4.  Special Orders Number 146, Department of the Army, Headquarters, 3rd Brigade (Separate), 1st Cavalry Division, dated 2 September 1971, awarded the applicant the CIB.  This award is not shown on his DD Form 214.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the BSM.  The applicant authenticated his DD Forms 214 with his signature.

6.  There are no orders in the applicant's record to show he was recommended for or awarded the BSM.  His DA Form 20 does not document either of these awards.

7.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any BSM orders on file for the applicant.

8.  The applicant provided a newspaper article which he contends was published in the Lawton Constitution in mid-year 1971, which states that he was awarded the BSM for meritorious service in the RVN.  

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism, valor and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  
Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

10.  The applicant's record shows that he received ratings of excellent in conduct and efficiency.  There is no evidence the applicant was disqualified for award of the Army Good Conduct Medal (AGCM).

11.  Army Regulation 672-5-1, in effect at the time, provides that the AGCM is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to
22 November 1955 are not disqualifying.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit received the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 6, dated 1974. 

13.  Appendix B of Army Regulation 600-8-22 lists all approved Army campaigns, including campaigns of the Vietnam War.  This same regulation states that a bronze service star will be awarded for wear on the VSM for participation in each campaign.

14.  The applicant's records indicate he participated in 1 campaign, the Vietnam Counteroffensive Phase VII campaign.  His DD Form 214 shows this campaign as "Unnamed Campaign" in Item 24.

15.  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.  Special Orders awarded the applicant the CIB.  Therefore, he is entitled to have his record corrected to show this award.

2.  There are no orders showing the applicant was recommended for or awarded the BSM.  A check of ADCARS failed to reveal any BSM.  Therefore, there is no basis upon which to grant this award.  Although the applicant provided a copy of a newspaper article showing he received the BSM, there is no evidence available to corroborate the newspaper story.  While the available evidence is insufficient for awarding the applicant a BSM, this in no way affects the applicant’s right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  The applicant completed a qualifying period of active duty enlisted service from 18 May 1970 – 23 December 1971 with excellent conduct and efficiency and no court-martial convictions.  He is therefore entitled to award of the AGCM (First Award).

5.  General Orders entitled the applicant’s unit to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure of assignment, which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

6.  The applicant participated in one named campaign, the Vietnam Counteroffensive Phase VII campaign.  Therefore, he is entitled to have his record corrected to show he is entitled to wear 1 bronze service star on his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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.  adding the already-awarded CIB to his record:

	b.  awarding the AGCM (First Award) for the qualifying period of service from 18 May 1970 – 23 December 1971 and correcting his record to show this award;

	c.  authorizing the Republic of Vietnam Gallantry Cross with Palm
Unit Citation and correcting the record to show this award;

	d.  deleting the "Vietnam Service Medal" from the applicant's DD Form 214 and adding the "Vietnam Service Medal with 1 bronze service star"; and

	e.  deleting "Unnamed Campaign" from the applicant's 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 award of the BSM.



      ___        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)                                         AR20080009494



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ABCMR Record of Proceedings (cont)                                         AR20080009494



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