IN THE CASE OF:	  

		BOARD DATE:	       16 October 2008

		DOCKET NUMBER:  AR20080012330 


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: 

	a.  Item 5a (Grade, Rate or Rank) and b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was a sergeant (SGT)/E-5 at the time of his retirement; and

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) be corrected to show award of the Combat Infantryman Badge (CIB), the Army Commendation Medal (ARCOM), the Purple Heart, and the Bronze Star Medal (BSM).

2.  The applicant states, in effect, that he never received the documentation for these awards and they were not annotated on his DD Form 214. 

3.  The applicant did not provide additional documentary evidence in support of this application.    

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 7 June 1966, the applicant enlisted in the Regular Army for a period of
3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

3.  The applicant served in the Republic of Vietnam (RVN) from 4 December 1966 through 23 November 1967.  He performed duties as a rifleman with Company A, 1st Battalion, 35th Infantry Regiment.  On 9 October 1967, he was wounded in action against the enemy.  He initially received treatment in the RVN and was subsequently transferred to the U. S. Army Hospital at Fort Gordon, Georgia.

4.  On 30 September 1968, the applicant was permanently retired by reason of physical disability due to his wounds sustained in combat.  His DD Form 214 shows his grade as specialist four/E-4 at the time of his retirement.  A review of his official records show he was promoted to specialist four/E-4 on 31 May 1967. There is no evidence that he was promoted to SGT/E-5.  His DA Form 20 shows his grade as specialist four/E-4.  There are no orders in his official record showing he was promoted to SGT/E-5.  A memorandum to the Chief, Retired Pay, dated 19 March 1969, confirmed that the highest grade held by the applicant was specialist four/E-4.

5.  The applicant's DD Form 214 already shows he was awarded the CIB.  Therefore, this award will not be addressed further in these proceedings.

6.  General Orders Number 256, Headquarters (HQ), 67th Evacuation Hospital,  dated 11 October 1967, awarded the applicant the Purple Heart for wounds received in action on 9 October 1967.  This award is not shown on his DD Form 214.

7.  General Orders Number 3769, HQ, 4th Infantry Division, dated 3 November 1967, awarded the applicant the ARCOM with "V" Device for action on
5 September 1967.  This award is not shown on his DD Form 214.

8.  There are no general orders showing the applicant was awarded the BSM.  His DA Form 20 (Enlisted Qualification Record) does not show award of the BSM.  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.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the BSM 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.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

11.  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).

12.  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.

13.  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 48, dated 1971; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 53, dated 1970. 

14.  Department of the Army Pamphlet 672-3 shows a unit to which the applicant was assigned (1st Battalion, 35th Infantry) was cited for award of the Valorous Unit Award (VUA) for the period 22 April – 20 August 1967, by Department of the Army General Orders Number 43, dated 1972.

15.  The applicant's records show he was awarded the Vietnam Service Medal with bronze service star.  However, his records indicate he participated in
3 campaigns, the Vietnam Counteroffensive Phase II, the Vietnam Counteroffensive Phase III, and the TET Counteroffensive campaigns.

16.  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 Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's official record which shows he was promoted to SGT/E-5.  The record contains a memorandum to the Retired Pay Section showing his highest grade held was specialist four/E-4.  Therefore, there is no basis upon which to change his rank and grade on his DD Form 214.

2.  General Orders awarded the applicant the Purple Heart and ARCOM with "V'" Device.  Therefore, he is entitled to have his record corrected to show these awards.

3.  There is no evidence the applicant was awarded the BSM.  Therefore, there is no basis upon which to base this award.

4.  The applicant completed a qualifying period of service for the first award of the AGCM.  There is no evidence in the available records which show the applicant was disqualified for this award.  Therefore, the applicant is entitled to award of the AGCM for the period 7 June 1966 through 30 September 1968 and to correction of his records to show the award of the AGCM (First Award).

5.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross With Palm Unit Citation 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.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which is not shown on his DD Form 214. Therefore, he is entitled to have his records corrected to show this foreign unit award.

7.  General Orders awarded the applicant's unit the VUA for the period 22 April – 20 August 1967.  Therefore, he is entitled to have records corrected to shows this unit award.
8.  Evidence of record shows that the applicant participated in 3 campaigns during his service in the RVN.  Therefore, he is eligible for award of 2 additional bronze service stars to be affixed on his already-awarded Vietnam Service Medal. 

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:

	a.  adding the already-awarded Purple Heart and ARCOM with "V" Device to his DD Form 214;

	b.  awarding the AGCM (First Award) for the qualifying period of 7 June 1966 through 30 September 1968 and correcting the 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.  authorizing the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and correcting the record to show this award;

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

	f.  deleting the "Vietnam Service Medal with bronze service star" from his DD Form 214 and adding the "Vietnam Service Medal with 3 bronze service stars."






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 changing his grade to SGT/E-5 and awarding 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)                                         AR20080012330



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ABCMR Record of Proceedings (cont)                                         AR20080012330



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