IN THE CASE OF:	  

	BOARD DATE:	  28 October 2008

	DOCKET NUMBER:  AR20080012620


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 correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show award of the Army Good Conduct Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with “1960” Device.  He also requests that his date and place of birth be corrected on his DD Form 214 to show that he was born in Brooklyn, New York, on 31 July 1946.

2.  The applicant states that he just found out about his authorization for these awards and did not know until March 2005 that his place and date of birth were wrong on his DD Form 214.

3.  The applicant provides copies of his DD Form 214, birth certificate, letter of commendation with certificate, history of the 538th Engineer Battalion (Construction), and information sheets pertaining to the Army Good Conduct Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

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 25 June 1964, the applicant enlisted in the Regular Army for 3 years.  His date of birth was shown as 14 August 1946, and his place of birth was shown as Buffalo, New York.  He completed his initial training and was awarded military occupational specialty (MOS) 62D (Surface Equipment Specialist).           

3.  On 30 November 1964, the applicant was assigned for duty as a concrete machine operator with the 538th Engineer Battalion (Construction), Fort Knox, Kentucky.

4.  On 25 June 1965, the applicant deployed with his unit to the United States Army, Pacific for duty in Thailand.  He served in Thailand until his return to the United States on 11 July 1966, when he was assigned to Fort Rucker, Alabama.

5.  On 23 June 1966, the applicant was promoted to specialist five, pay 
grade E-5.

6.  On 20 December 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful general regulation by not signing out on leave.  The punishment included reduction to pay grade E-4 and a forfeiture of $50.00 pay per month for 2 months.

7.  On 23 June 1967, the applicant was released from active duty.  He held the rank of specialist four, pay grade E-4 and had completed 2 years, 11 months and 29 days of creditable active duty.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Army Good Conduct Medal, Vietnam Service Medal, or the Republic of Vietnam Campaign Medal with “1960” Device. 

9.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were excellent, with the exception of one entry [not academic proficiency] showing his conduct as “good.” 
10.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had 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. 

11.  The Vietnam Order of Battle, by Shelby L. Stanton, 1989, cites the 538th Engineer Battalion (Construction) as having provided, during the period from 
14 July 1965 to 15 June 1970, direct and/or indirect support functions related to the Vietnam conflict and received Vietnam service credit in recognition of its supporting role. 

12.  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.  Members of the Armed Forces of
the United States in Thailand, Laos, or Cambodia, or the airspace there over, during the same period and serving in direct support of operations in Vietnam are also eligible for this award.

13.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in Thailand, in support of operations in the Republic of Vietnam, he participated in the following two campaign periods: the Vietnam Defense and the Vietnam Counteroffensive.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal with "1960-" Device.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army using a date of birth of 14 August 1946 and a place of birth as Buffalo, New York.  He completed his enlistment and was honorably released from active duty service.  

2.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. 

3.  The applicant is advised that a copy of this decisional document, along with his application and the supporting evidence he provided, confirming his correct date and place of birth will be filed in his Official Military Personnel File.  This should serve to clarify any questions or confusion regarding the difference between his actual date and place of birth and what is recorded in his military record.

4.  In view of the above, the applicant’s request to change his date and place of birth on his DD Form 214 should be denied.   

5.  The applicant’s records show that, for a portion of his service, his conduct was rated as good.  This rating disqualified him for award of the Army Good Conduct Medal.  Therefore, he should not be awarded this medal.

6.  Records show that the applicant served in the theater or geographic area during a qualifying period for award of the Vietnam Service Medal.  Therefore, his records should be corrected to show this award.

7.  Records show that the applicant participated in two campaign periods during his service in support of operations in the Republic of Vietnam.  Therefore, he is eligible for award of two bronze service stars to be affixed to his Vietnam Service Medal.

8.  Records show that the applicant served during a qualifying period for award of the Republic of Vietnam Campaign Medal with "1960"Device.  Therefore, his records should be corrected to show this award.



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 showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Vietnam Service Medal with two bronze service stars and the Republic of Vietnam Campaign medal with "1960" Device.

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 Army Good Conduct Medal and to changing his date and place of birth as shown in his military records.   




__________ _  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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080012620



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