IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012834 


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 separation document be corrected by adding the Purple Heart (PH) and Bronze Star Medal 2nd Oak Leaf Cluster (3rd Award).  

2.  The applicant states, in effect, that he recently discovered that his PH and the three awards of the BSM were omitted from his separation document (DD Form 214).  He also indicates that he has proof of his entitlement to these awards.

3.  The applicant provides his DD Form 214; PH orders with certificate; and three BSM orders with certificates in support of his 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. The applicant’s military records show he was inducted into the Army of the United States and entered active duty on 28 January 1969.  He completed basic combat and advanced individual training (AIT) at Fort Lewis, Washington.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist).

3. The applicant's Enlisted Qualification Record (DA Form 20) shows that he served in the Republic of Vietnam (RVN) from 12 February to 8 December 1970. Item 38 (Record of Assignments) shows that he received "Excellent" conduct and efficiency ratings at each of his active duty assignments.  Item 41 (Awards and Decorations) shows he earned the following awards:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); RVN Campaign Medal (RVNCM) with Device (1960); Bronze Star Medal with 1st Oak Leaf Cluster (BSM (1st OLC)); Expert Marksmanship Qualification Badge with Machinegun and Grenade Bars; Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar; and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

4.  The applicant's Military Personnel Records Jacket (MPRJ) contains no derogatory information and there is no documented record of a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal.  

5.  The applicant's MPRJ does contain Headquarters, Americal Division, General Orders (GO) Number (#) 8055, dated 5 July 1970, which awarded the applicant the BSM for meritorious service for the period 1 February to 31 May 1970; and Headquarters, Americal Division GO # 12332, dated 10 September 1970, which awarded him the BSM for meritorious service for the period 1 May to 31 August 1970.

6.  The MPRJ also contains a Clinical Record Coversheet (DA Form 8-275-3) dated 7 August 1970, which shows the applicant was wounded in action on 
7 August 1970, when he sustained a penetrating wound to his right chest wall and right lower leg.  

7.  On 13 December 1970, the applicant was honorably released from active duty after completing a total of 1 year, 8 months, and 16 days of active military service, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure: NDSM; CIB; 
RVNCM with Device (1960); BSM (1st OLC); Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar; and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

8.  The applicant provided Headquarters, Americal Division GO # 10334, dated
8 August 1970, which awarded him the PH for being wounded in the RVN on 
7 August 1970; and Headquarters, Americal Division GO # 14011, dated 
20 October 1970, which awarded him the BSM for meritorious achievement in the RVN during the period 1 June to 30 September 1970.

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 Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the Vietnam Winter Spring 1970, Sanctuary Counteroffensive, and the Vietnam Counteroffensive Phase VII campaigns.  

10.  Paragraph 3-14 contains guidance on the award of the BSM and states, in pertinent part, that an oak leaf cluster is awarded to denote a second or subsequent award of the BSM.

11.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  

12.  Paragraph 9-19 of the awards regulation contains guidance on award of the RVN Campaign Medal with Device (1960).  It states, in pertinent part, that this award is authorized for members who served in the RVN for 6 months or more during the period 1 March 1961 through 28 March 1973.  Individuals who serve for less than 6 months who have been wounded by hostile forces are also entitled to receive this award.

13.  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 claim of entitlement to the PH and the BSM (2nd Oak Leaf Cluster) has been carefully considered and found to have merit.  The evidence of record confirms that the applicant was awarded the PH and the BSM for three separate periods, and that these awards were announced in official orders.  As a result, Item 24 of the applicant’s separation document should be corrected to add the PH and to show his entitlement to the BSM with 2nd OLC to denote three awards instead of two awards of the BSM.

2.  The applicant's record also confirms that he received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or a specific disqualification by any of the active duty unit commanders for whom he served.  As a result, it would be appropriate to award the applicant the first award of the AGCM, for his qualifying period of honorable active duty service from 28 January 1969 through 13 December 1970.

3.  The evidence of record also shows that based on the applicant's service and campaign participation in the RVN, he is also entitled to the Vietnam Service Medal with 3 bronze service stars; RVN Gallantry Cross with Palm Unit Citation; and the Expert Marksmanship Qualification Badge with M-60 Machinegun and Grenade Bars.  Thus, it would also be appropriate to add these awards to his separation document at this time.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

      a.  awarding him the first award of the Army Good Conduct Medal, for his qualifying honorable active duty service from 28 January 1969 to 13 December 1970; 
      
      b.  deleting the current list of awards in Item 24 of his DD Form 214;
      
      c.  replacing it with the entry “Bronze Star Medal (2nd Oak Leaf Cluster), Purple Heart, Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Machinegun and Grenade Bars, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar; and
      
      d.  providing him a correction to his separation document that includes these change.



      ______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)                                         AR20080012834



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ABCMR Record of Proceedings (cont)                                         AR20080012834


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