IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010157 


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 all awards and decorations to which he is entitled.

2.  The applicant does not specify which awards he believes he is entitled to; however, he states that his request is based on a recommendation written by Brigadier General (BG) (Ret) G_____ to the Department of Veterans Affairs (DVA) on 17 October 2007.  In this recommendation, BG G_____ personally attests that the applicant should have received the Combat Infantryman Badge (CIB), the Vietnam Service Medal (VSM), the Vietnam Cross of Gallantry (sic) the Bronze Star Medal (BSM) with "V" Device, and the Army Commendation Medal Meritorious Service Medal (sic).  The Board construes the Vietnam Cross of Gallantry to mean the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the "Army Commendation Medal Meritorious Service Medal" to mean the Army Commendation Medal (ARCOM) for meritorious service.   

3.  The applicant provides a copy of his DD Form 214 and a copy of a letter from BG G____ to the DVA, dated 17 October 2007.

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 23 January 1968, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 05B (Radio Operator).  He attained the grade of sergeant/E-5.  On
22 January 1970, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).  On 1 January 1974, 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 9 July 1968 through 8 July 1969.  He performed duties as a scout observer with Headquarters and Headquarters Company and Company C, 3rd Battalion, 21st Infantry Regiment, 196th Infantry Brigade.

4.  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 CIB or BSM with "V" Device.  The applicant authenticated his DD Forms 214 with his signature.

5.  There are no orders in the applicant's record to show he was recommended for or awarded the CIB or BSM with "V" Device.  His DA Form 20 (Enlisted Qualification Record) does not document either of these awards.

6.  The applicant's DA Form 20 also shows that he was awarded MOS 11F (Infantry Operations Intelligence Specialist) on 13 October 1969 as a secondary MOS.

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 CIB or BSM with "V" Device orders on file for the applicant.


8.  Paragraph 8-6 of Army Regulation 600-8-22 (Military Awards) provides for award of the CIB.  This paragraph states that there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific requirements state, in effect, that an Army enlisted soldier must have an infantry specialty and satisfactorily performed duty while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  A recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty, in a unit actively engaged in ground combat with the enemy.  Commanders were not allowed to make any exceptions to this policy.

9.  The Awards Branch of the U.S. Army Human Resources Command (formerly known as the Total Army Personnel Command) has advised, in similar cases that during the Vietnam era the CIB was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.  

10.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the CIB to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the CIB identified the man who trained, lived, and fought as an infantryman and the CIB is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, “the CIB is not an award for being shot at or for undergoing the hazards of day to day combat.”  This regulation also stated the CIB was authorized for award to infantry officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

11.  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.  

12.  The applicant's DA Form 20 shows he was awarded 2 ARCOMs by General Order Numbers 947 and 494, Headquarters, Americal Division, respectively.  The applicant's DD Form 214 has 2 entries ("ARCOM" and "ARCOMS") for these awards.  A direction will be given below to correct this entry on the DD Form 214 to "ARCOM (Second Award).
13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the VSM.  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.

14.  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.

15.  The applicant's records indicate he participated in 4 campaigns, the Vietnam Counteroffensive Phase V, the Vietnam Counteroffensive Phase VI, the TET 69 Counteroffensive 1969, and the Vietnam Summer-Fall 1969 campaigns.     

16.  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. 

17.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

18.  Department of the Army Pamphlet 672-3 shows a unit to which the applicant was assigned (3rd Battalion, 21st Infantry Regiment) was cited for award of the Valorous Unit Award (VUA) for the period 13 - 17 May 1969, by Department of the Army General Orders Number 43, dated 1972.

19.  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).

20.  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.

21.  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.  By regulation, in order to qualify for the CIB, in addition to being an infantryman performing infantry duties, and being assigned to an infantry unit when the unit is engaged in active ground combat, the applicant must also show that he was actively participating in ground combat.  There are no orders showing the applicant was recommended for or awarded the CIB.  A check of ADCARS failed to reveal any CIB orders.

2.  The evidence in the official record shows the applicant held MOS 05B during the time he served in the RVN, although his DA Form 20 shows he performed duties as a scout observer (11F) with an infantry regiment.  He was awarded MOS 11F as a secondary MOS in October 1969.  Army regulations require that a Soldier possess an infantry specialty and satisfactorily perform duties while assigned or attached as a member of an infantry unit of brigade, regimental, or smaller size for award of the CIB.  Regrettably, in the applicant's case, there is no evidence showing he possessed an infantry specialty while in the RVN.  Further, the letter from BG G____ attests that the applicant experienced enemy fire that included small arms, machine, gun, mortar, rocket propelled grenades, etc., however, there is no corroborating evidence in his official record to support this statement, and the statement itself is insufficient evidence upon which to base award of the CIB.  Given the above, there is no basis upon which to award the applicant the CIB.  

3.  There are no orders showing the applicant was recommended for or awarded the BSM with "V" Device.  A check of ADCARS failed to reveal any BSM with "V" Device orders.  Therefore, there is no basis upon which to grant this award.  While the available evidence is insufficient for awarding the applicant a BSM with "V" Device, 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 23 January 1968 – 22 January 1970 with excellent conduct and efficiency and no court-martial convictions.  He is therefore entitled to award of the AGCM (First Award).

5.  General Orders authorized the applicant’s unit the 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 had a qualifying period of service for award of the VSM.  The applicant’s record also shows he served in Vietnam during 4 campaigns and he is entitled to wear 4 bronze service stars on his VSM.

7.  The applicant's unit was awarded the VUA for the period 13 - 17 May 1969.
Therefore, he is entitled to have his records corrected to show this unit award.

8.  General Orders awarded the applicant the ARCOM (Second Award).  Therefore, he is entitled to have his record corrected to show these awards.

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.  awarding the AGCM (First Award) for the qualifying period of service from 23 January 1968 – 22 January 1970 and correcting his record to show this award;

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

	c.  awarding the VSM with 4 bronze service stars and correcting his record to show this award;

	d.  awarding the VUA and correcting his record to show this award; and

	e.  deleting "ARCOM" and "ARCOMS" from his DD Form 214 and adding "ARCOM (Second Award)."

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 CIB and the BSM with "V" Device.  




      ___        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)                                         AR20080010157



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ABCMR Record of Proceedings (cont)                                         AR20080010157



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