IN THE CASE OF:	 

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080012176 


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, that his record be corrected to show award of the Army Commendation Medal (ARCOM).  He also requests that Item 29 of his AGPZ Form 977 (Data for Retired Pay) be corrected to show he was retired due to a physical disability caused by line of duty injuries.

2.  The applicant states, in effect, that his record should be corrected to show all awards to which he is entitled.  He also states that Item 29 of his AGPZ Form 977 should show that he received a physical disability retirement as a result of injuries incurred in the line of duty.

3.  The applicant provides the following documents in support of his application:   a copy of AGPZ Form 977and his separation document (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 record shows that he was inducted into the Army of the United States and entered active duty on 18 May 1966.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Infantry Indirect Crewman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows that he served in the Republic of Vietnam (RVN) from 29 November 1966 to 
11 November 1967.  Item 33 (Appointments and Reductions) shows that he was promoted to the rank of specialist four (SPC/E-4) on 1 August 1967, and this was the highest rank he attained while serving on active duty.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that he earned the following awards during his active duty tenure:  the National Defense Service Medal (NDSM); the Vietnam Service Medal (VSM); the Parachutist Badge; the Combat Infantryman Badge (CIB); the RVN Campaign Medal with “1960” Device; and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant’s records contain General Orders Number 2106, Headquarters, 1st Brigade, 101st Airborne Division, dated 8 October 1967.  These orders awarded the applicant the ARCOM, for meritorious service for the period 
29 November 1966 to 3 October 1967.

6.  The applicant’s records contain an AGPZ Form 977 completed on 6 February 1969.  Item 15 (Type of Retirement and Finance Allotment Code Number) shows the applicant was retired by reason of a “permanent disability.”  Item 29 (Physical Disability Information Pertinent to the Dual Compensation Act of 1964) Applicable to permanent and temporary disability retirement of regular commissioned and warrant officers does not contain a marked entry because this item is not applicable to enlisted Soldiers. 

7.  On 12 February 1969, the applicant was honorably released from active duty (REFRAD) after completing a total of 2 years, 8 months, and 25 days of active military service.  The DD Form 214 issued to the applicant shows that he was REFRAD by reason of retirement due to permanent disability in Item 11c (Reason and Authority).

8. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows that he earned the Purple Heart.
9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 of the awards regulation contains guidance on award of the VSM.  It states, in pertinent part, that a bronze service star is authorized for wear with this award for each RVN campaign a member is credited with participating in while serving in the RVN.

10.  Table B-1 of the awards regulation contains a list of campaigns.  The applicant participated in the Vietnam Counteroffensive Phase II and the Vietnam Counteroffensive Phase III campaigns.

11.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show award of the ARCOM has been carefully considered and found to have merit.  The available record contains General Orders Number 2106 that confirms he was awarded the ARCOM.  In addition, based on his service and campaign participation in the RVN he is also entitled to the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, two bronze service stars to be affixed to his already awarded VSM, and the RVN Gallantry Cross with Palm Unit Citation.  As a result, Item 24 of his DD Form 214 should be corrected to show these awards.

2.  The applicant’s contention that his AGPZ Form 977 should be corrected to show he was retired by permanent disability due to injuries he incurred in the line of duty was also carefully considered.  However, the instructions for completing this portion of the form indicates that Item 29 is only applicable to permanent or temporary disability retirements of commissioned or warrant officers.  The evidence of record confirms that the applicant never served as a commissioned or warrant officer and that at the time of his REFRAD he held the rank of SP4.  As a result Item 29 of the applicant’s AGPZ Form 977 was not applicable to him and the blocks/comments contained therein were appropriately left unmarked.  Therefore, there is no basis for granting this portion of the requested relief in this case.  

3.  However, the applicant’s AGPZ Form 977, item 15, is correctly marked to show he was retired by reason of a “permanent disability.”  




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 amending Item 24 of the DD Form 214 by adding the Army Commendation Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two bronze service stars to be worn on the already awarded Vietnam Service Medal; and by providing the applicant a correction to the separation document to reflect these awards.

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 correcting Item 29 of AGPZ Form 977.

      
      
      _______ _  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)                                         AR20080012176



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ABCMR Record of Proceedings (cont)                                         AR20080012176



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