IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080013043 


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 record be corrected to add all awards to which he is entitled based on his Republic of Vietnam (RVN) service. 

2.  The applicant states, in effect, that he wishes to have all his medals and decorations that he is eligible for based on his RVN service.  He states that due to being wounded and sent to two different hospitals, his records never caught up with him.  

3.  The applicant provides his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) and an American Legion letter, dated 
25 July 2008, 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 record shows he was inducted into the Army of the United States (AUS) and entered active duty on 2 November 1966.  He was trained in, awarded, and served in military occupational specialty (MOS) 13A (Assistant Gunner) and the highest rank he attained while serving on active duty was corporal (CPL).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 27 November 1967 through 22 August 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to B Battery, 
3rd Battalion, 16th Artillery from 3 December 1967 through 22 August 1968, and that on 23 August 1968, he entered a patient status in the Medical Holding Detachment (MHD) at the 249th General Hospital, Japan.  Item 38 also shows he received no less than "Excellent" conduct and efficiency ratings at all of his active duty assignments.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 shows he received small fragmentation wounds on 18 July 1968, and a fragment wounds to his right arm and the right side of his face on 28 July 1968.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Purple Heart (PH) with 1st Oak Leaf Cluster; Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM) with 1960 Device; and Expert Marksmanship Qualification Badge with Rifle (M-14) Bar.  

5.  The applicant's record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

6.  The applicant's record contains Headquarters, Americal Division General Orders (GO) Number (#) 5839, dated 15 August 1968, which awarded him the PH for wounds received in action on 18 July 1968, and Headquarters, Americal Division GO # 7273, dated 18 September 1968, which awarded him the PH 
1st Oak Leaf Cluster (2nd Award), for wounds received in action on 28 July 1968. 

7.  On 26 September 1968, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 10 months, and 25 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists only the NDSM as an earned award.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  
9.  Table B-1 of the awards regulation contains a list of RVN campaigns and shows that during the applicant's tenure of assignment, participation credit was granted for the Vietnam Counteroffensive III, TET Offensive, Vietnam Counteroffensive Phase IV, and Vietnam Counteroffensive Phase V campaigns. 

10.  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.  

11.  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 contention that his record should be corrected to include all awards to which he is eligible based on his service in the RVN was carefully considered and found to have merit.  Item 41 of the applicant's DA Form 20 confirms he earned the following awards during his active duty tenure:  NDSM; PH 1st Oak Leaf Cluster (2nd Award); VSM; RVN Campaign Medal (RVNCM) with 1960 Device; and Expert Marksmanship Qualification Badge with Rifle Bar.  

2.  The applicant's record confirms he was wounded in action in the RVN on 18 July 1968, and again on 28 July 1968, and that he was appropriately awarded the PH and the PH 1st Oak Leaf Cluster (2nd Award), as evidenced by entries in Item 40 of his DA Form 20 and by PH award orders on file in his record.  

3.  The evidence of record also shows the applicant received “Excellent” conduct and efficiency ratings at all of his active duty assignments, and his record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 2 November 1966 through 26 September 1968. 

4.  The evidence also confirms that based on his RVN service and campaign participation, he is eligible for the RVN Gallantry Cross with Palm Unit Citation  and 4 bronze service stars with his VSM.  His record also shows that he qualified as an expert with the Marksmanship Qualification Badge with Rifle (M-14) Bar.  

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 amending his DD Form 214 dated 26 September 1968 by:

	a.  awarding him the Army Good Conduct Medal, for his qualifying period of honorable active duty service from 2 November 1966 through 26 September 1968;

	b.  amending Item 24 of his DD Form 214 by adding the Purple Heart 1st Oak Leaf Cluster (2nd Award), Army Good Conduct Medal, Vietnam Service Medal with 4 bronze service stars, Republic of Vietnam Campaign Medal with Device 1960, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Expert Marksmanship Qualification with Rifle (M-14) Bar; and 

	c.  providing him a correction to his separation document that includes these changes.




      _______ _  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)                                         AR20080013043



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ABCMR Record of Proceedings (cont)                                         AR20080013043


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