IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080012998 


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) effective 14 September 1969 to show award of the Bronze Star Medal with two Oak Leaf Clusters and "V" Device, Good Conduct Medal, Vietnam Service Medal with a silver service star and two bronze service stars, [Republic of] Vietnam Campaign Medal [with 1960 Device], Air Medal with 33 Oak Leaf Clusters, Sharpshooter Marksmanship Qualification Badge with Pistol Bar, and any other medals for service in the Republic of Vietnam.

2.  The applicant states that he served two tours of duty in the Republic of Vietnam, from 1 December 1966 to 30 November 1967 with Troop D, 1st Squadron, 4th Cavalry, 1st Infantry Division; and from 17 April to 31 October 1969 with the 229th Aviation Battalion.  He also states that he served in the Republic of Korea from 16 January 1968 to 26 February 1969 with Troop D, 3rd Squadron, 7th Cavalry, 3rd Infantry Division.

3.  The applicant provides copies of his DD Form 214 effective 14 September 1969, Individual Flight Record and Flight Certificate-Army (DA Form 759) for the period of July 1973, and his Officer Qualification Record (DA Form 66) with Insert Sheets (DA Form 66B).





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 DD Form 214 effective 14 September 1969 already shows award of the [Republic of]Vietnam Campaign Medal [with 1960 Device].  Therefore, this issue will not be further discussed.

3.  On 12 November 1965, the applicant enlisted in the Regular Army for 2 years.  He completed his basic combat training at Fort Polk, Louisiana.

4.  On 22 January 1966, the applicant was assigned to Fort Wolters, Texas as a warrant officer candidate.  On 24 June 1966, he was reassigned to Fort Rucker, Alabama.

5.  On 7 November 1966, the applicant was discharged to accept an appointment as a warrant officer in the United States Army Reserve.  He had attained the rank of specialist five, pay grade E-5, and had completed 11 months and 26 days of creditable active duty service.

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, effective 7 November 1966, lists his awards as the National Defense Service Medal and the Sharpshooter Qualification Badge with Rifle and Pistol Bars.  It does not show award of the Good Conduct Medal.

7.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

8.  On 8 November 1966, the applicant was appointed as a warrant officer one, pay grade W1 with concurrent call to active duty.  He was subsequently assigned for duty as a helicopter pilot in the Republic of Vietnam.

9.  On 6 December 1966, the applicant was assigned to Troop D, 1st Squadron, 4th Cavalry Regiment, 1st Infantry Division.  

10.  General Orders Number 1235, 1st Infantry Division, dated 9 February 1967, awarded the applicant the Air Medal for meritorious achievement while participating in aerial flight during the period from 10 to 30 December 1966.

11.  General Orders Number 2063, 1st Infantry Division, dated 3 April 1967, awarded the applicant the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force on 26 December 1966.

12.  General Orders Numbers 8484 and 8485, 1st Infantry Division, dated 
26 November 1967, awarded the applicant Oak Leaf Clusters 10 through 15 to be affixed to his already awarded Air Medal for meritorious achievement while participating in aerial flight during the periods from 15 to 29 July 1967; 31 July to 13 August 1967; 21 August to 1 September 1967; 2 to 17 September 1967; and from 6 to 24 October 1967.  There is no evidence available showing the applicant was awarded any additional Oak Leaf Clusters to be affixed to his Air Medal.

13.  General Orders Number 7441, 1st Infantry Division, dated 18 October 1967, awarded the applicant the Bronze Star Medal (Oak Leaf Cluster) for meritorious service during the period from November 1966 to October 1967.

14.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any additional awards.

15.  The applicant's flight records show that he participated in aerial flight on 
13 days between 29 October and 19 November 1967, but does not show that this service was sufficient for award of another Oak Leaf Cluster to be affixed to his Air Medal.

16.  On 30 November 1967, the applicant returned to the United States.  

17.  On 18 January 1968, the applicant was assigned to Troop D, 3rd Squadron, 7th Cavalry, 3rd Infantry Division, in the United States Army Europe.  

18.  Special Orders Number 51, 3rd Squadron, 7th Cavalry Regiment, dated 
22 August 1968, awarded the applicant the Marksman Marksmanship Qualification Badge with Pistol Bar.

19.  On or about 26 February 1969, the applicant returned to the United States.

20.  On 23 April 1969, the applicant was assigned duty with Headquarters and Headquarters Company, 229th Aviation Battalion, 1st Cavalry Division in the Republic of Vietnam.  The next day he was reassigned to Company C, 229th Aviation Battalion.  

21.  The applicant's flight records show he participated in combat aerial flights
18 days during the period 1 July to 2 August 1969, but does not show this service was sufficient for award of another Oak Leaf Cluster to be affixed to his Air Medal.  There is no available evidence showing the applicant participated in combat aerial flight during the period from 23 April to 30 June 1969, or from 3 to 
29 August 1969. 

22.  On 29 August 1969, the applicant departed the Republic of Vietnam and he was subsequently released from active duty on 14 September 1969.  He had attained the rank of chief warrant officer two, CW2, and he had completed 
2 years, 10 months, and 7 days of creditable active duty as a warrant officer. 

23.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 effective 14 September 1969, lists his awards as the National Defense Service Medal, Vietnam Service Medal, [Republic of] Vietnam Campaign Medal [with 1960 Device], Purple Heart with Oak Leaf Cluster, Air Medal with 15 Oak Leaf Clusters, Distinguished Flying Cross with two Oak Leaf Clusters, Bronze Star Medal with Oak Leaf Cluster and "V" Device, Army Commendation Medal with Oak Leaf Cluster, and the Army Aviator Badge.   

24.  The applicant has provided a copy of his DA Form 759 for the period of July 1973 showing that he had completed 820 hours of combat as a pilot.

25.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

26.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  

27.  Army Regulation 600-8-22 (Military Awards) provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

28.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following five campaign periods: the Vietnam Counteroffensive; the Vietnam Counteroffensive, Phase II; the Vietnam Counteroffensive, Phase III; the TET 
69 Counteroffensive; and the Vietnam Summer-Fall 1969.   This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  A silver service star denotes participation in five campaigns.

29.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 1st Squadron, 4th Cavalry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders (DAGO) Number 21, dated in 1969, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and in DAGO Number 53, dated in 1970, for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

30.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant did not serve in an enlisted status for a qualifying period of 1 year or more for award of the Good Conduct Medal.  Therefore, his request for this award should be denied.

2.  The evidence of record clearly shows that the applicant was awarded the Air Medal with 15 Oak Leaf Clusters, which would be shown today as a Numeral 16.  However, there is no available evidence showing that he qualified for any additional awards of the Air Medal.  In the Republic of Vietnam the Air Medal was awarded to those individuals who had completed a minimum of 25 hours of flight time while engaged in Category I missions.  Each additional award required a minimum of 25 missions, and was not based simply on the number of flight hours completed.   Therefore, his request to show that he was awarded a total of 
33 Oak Leaf Clusters, or a Numeral 34, should be denied.

3.  General Orders show that the applicant was awarded the Bronze Star Medal with an Oak Leaf Cluster and "V" Device [two awards].  However, there is no available evidence showing that he was awarded a third Bronze Star Medal. 

4.  While the available evidence is insufficient for awarding the applicant a third Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  Records show that the applicant participated in five campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of a silver service star to be affixed to his Vietnam Service Medal.  However, his contention that he is authorized an additional two bronze service stars for service in the Republic of Vietnam is not substantiated by any evidence of record.

6.  Records show that the applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, his records should be corrected to show these foreign unit awards. 
7.  The applicant's DD Form 214 effective 7 November 1966 shows that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle and Pistol Bars during that period of active duty service.  Therefore, his request to show this award on his subsequent DD Form 214 should be denied.

8.  Special Orders show that the applicant was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar in August 1968.  Therefore, his DD Form 214 effective 14 September 1969 should be corrected to show this award.

9.  The evidence of record shows that the applicant served in Europe during the period from 18 January 1968 to 26 February 1969, and not in the Republic of Korea as he contends.

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 effective 
14 September 1969, his authorized awards include a silver service star to be affixed to his already-awarded Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Marksman Marksmanship Qualification Badge with Pistol Bar.









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 a third Bronze Star Medal, Good Conduct Medal, two additional bronze service stars to be affixed to his Vietnam Service Medal, and a Sharpshooter Marksmanship Qualification Badge with Pistol Bar.




      _______ _  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)                                         AR20080012998



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ABCMR Record of Proceedings (cont)                                         AR20080012998



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