IN THE CASE OF:	  

		BOARD DATE:	        05 MARCH 2009

		DOCKET NUMBER:  AR20080012238 


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 reflect his Vietnam service, the Vietnam Service Medal (VSM), and all authorized awards.

2.  The applicant states, in effect, that he has not received the VSM or other medals awarded.  However, the Department of Veterans Affairs (VA) has conceded his combat service in Vietnam in his rating decision dated 2 July 2008.

3.  The applicant provides a copy of his DD Form 214 and his VA Rating Decision.

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 in Louisville, Kentucky on 22 August 1963.  He completed his basic and advanced individual training as an Armor Intelligence Specialist (11D10) at Fort Knox, Kentucky and was transferred to Hawaii on 6 January 1964.  He was assigned to the 25th Infantry Division and was attached to Troop A, 3d Squadron, 4th Cavalry Regiment.  He was advanced to the pay grade of E-3 on 22 April 1964.

3.  On 25 May 1964, he was transferred to Vietnam for assignment to the 119th Aviation Company as a door gunner.

4.  On 8 September 1964, he was returned to his unit in Hawaii.  He was advanced to the pay grade of E-4 on 1 November 1964 and on 10 August 1965, he departed Hawaii for Oakland Army Base, California, where he was honorably released from active duty (REFRAD) as an overseas returnee.  He had served 1 year, 11 months and 19 days of total active service and was awarded the Armed Forces Expeditionary Medal, the Air Medal with one oak leaf cluster and the Good Conduct Medal.

5.  The applicant’s DD Form 214 issued at the time of his REFRAD reflects in item 24c that his last foreign service was in "USARPAC" and that he had 1 year, 7 months and 5 days of foreign service.

6.  Army Regulation 672-5-1 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954 and 1 January 1961 through 14 August 1974 inclusive.  

7.  Army Regulation 600-8-22 (Military Awards), 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, the Vietnam Service Medal may be awarded 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.

8.  Army Regulation 600-8-22 (Military Awards) 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.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

10.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time provides, in pertinent part, that the total active duty performed outside of the continental United States for the period covered by the DD Form 214 will be entered in item 24c.  Additionally, the last overseas theater service was performed, e.g., United States Army – Pacific (USARPAC), United States Army – Europe (USAREUR), etc. will be entered.  Both Hawaii and Vietnam are located in USARPAC. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to reflect his service in Vietnam has been considered and found to lack merit.  While the applicant did serve in Vietnam for 3 months and 13 days and was awarded the AFEM and the Air Medal with one oak leaf cluster for that service, his DD Form 214 correctly reflects the last overseas theater in which his foreign service was performed.

2.  The applicable regulation in effect at the time did not provide provisions to enter the actual country in which service was performed.  Accordingly, his DD Form 214 was properly prepared to reflect his overseas service in USARPAC, which encompassed both Vietnam and Hawaii.

3.  The applicant's contention that he should have received the VSM has been noted.  The applicant was awarded the AFEM for his service in Vietnam because the VSM did not exist at the time he served in Vietnam.  As he did not specifically request award of the VSM in lieu of the Armed Forces Expeditionary Medal, it would not be appropriate to award him the VSM at this time.
4.  However, the applicant is entitled to award of the NDSM and to have that award entered on his records.  Accordingly, it would be appropriate to do so at this time.

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 adding the award of the NDSM to his records and authorizing the issuance of a medal set. 

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 his records to reflect service in Vietnam and award of the VSM.  




      _______ _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)                                         AR20080012238



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ABCMR Record of Proceedings (cont)                                         AR20080012238



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