IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080013047 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to add all his medals and that his service dates be corrected at the same time.

2.  The applicant states, in effect, there was a mistake made upon his discharge from the Army - errors, in effect, made by clerks making out the paperwork.  He summarizes by adding that the errors were not found until he was filing a claim for service-connected compensation.  His counsel found that medals and a certificate were left off of his discharge papers.

3.  In support of his request, the applicant provides a copy of his DD Form 214.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has remained silent to allow the applicant to present his own case; however, counsel respectfully requests to be appropriately informed of all actions taken in the case.

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 records show that he was inducted into the Army of the United States and entered active duty on 26 April 1967.  He completed basic combat training at Fort Knox, Kentucky and his advanced individual training at Fort Polk, Louisiana.  After completing all required training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant was reassigned to Hawaii on 28 September 1967 and subsequently transferred to Vietnam on 5 December 1967.

4.  The applicant served in Vietnam from 5 December 1967 through 2 March 1969, with Company C, 4th Battalion, 3rd Infantry Regiment, 11th Infantry Brigade.

5.  The applicant was honorably released from active duty on 4 March 1969 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) as an overseas returnee.  He was released from active duty in the rank and pay grade of Private (PV1)/E-1.  On the date he was released from active duty, he had completed 1 year, 8 months, and 11 days active military service.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle], Expert Marksmanship Qualification Badge with Rifle Bar [M-16 Rifle], and two Overseas Service Bars.  No other awards or decorations are shown on the DD Form 214.

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), Purple Heart, two Overseas Service Bars, 
Expert Marksmanship Qualification Badge with Rifle Bar [M-16 Rifle], and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle].  No other awards or decorations are shown on the DA Form 20.

8.  The applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar [M-60 Machinegun], in paragraph 214, Special Orders 196, published by Headquarters, Fort Polk, Louisiana on 31 July 1967.

9.  The applicant was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar [.45 Caliber Pistol], in paragraph 10, Special Orders 261, published by Headquarters, 11th Infantry Brigade, APO San Francisco 96557 on 27 November 1967.

10.  The applicant was awarded the Combat Infantryman Badge, in paragraph 56, Special Orders Number 21, published by Headquarters, Americal Division, APO San Francisco 96374 on 21 January 1968.

11.  The applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 20 June 1968, by General Orders Number 4229, published by Headquarters, Americal Division on 15 July 1968.

12.  The applicant's DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show the service stars to which he is entitled for his campaign participation.

13.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

14.  While in Vietnam, the applicant participated in the following six campaigns of the Vietnam War:  the Vietnam Counteroffensive, Phase III, which extended from 1 June 1967 through 29 January 1968; the Tet Counteroffensive, which extended from 30 January through 1 April 1968; the Vietnam Counteroffensive, Phase IV, which extended from 2 April through 30 June 1968; the Vietnam Counteroffensive, Phase V, which extended from 1 July through 1 November 1968; the Vietnam Counteroffensive, Phase VI, which extended from 2 November 1968 through 22 February 1969; and the Tet 69 Counteroffensive, 1969, which extended from 23 February through 8 June 1969.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), dated 29 January 1988, which lists unit awards received by units serving in Vietnam, shows that the unit the applicant was 
assigned to was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, for the period 2 November 1968 through 28 February 1969, by Department of the Army General Order Number 2, dated 1971.

16.  Army Regulation 600-8-22 (Personnel General - Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in its Appendix B and states that authorized bronze service stars will be worn on the appropriate service medal, in this case, the Vietnam Service Medal.  The regulation further provides that one silver service star will be worn in lieu of five bronze service stars.

17.  Army Regulation 670-1 (Uniform and Insignia - Wear and Appearance of Army Uniforms and Insignia), chapter 29, prescribes policy and guidance for wear of U.S. and foreign unit awards.  This regulation states that a Soldier may wear the unit award permanently if the individual was assigned to, and present for duty with the unit any time during the period cited; or was attached by competent orders to, and present for duty with the unit during the entire period, or for at least thirty consecutive days of the period cited.

18.  Item 10c (Date Inducted) of the applicant's DD Form 214 shows he was inducted into the Army of the United States on 26 April 1967.

19.  Item 11d (Type of Transfer or Discharge (Effective Date)) of the applicant's DD Form 214 shows he was released from active duty on 4 March 1969.

20.  Item 22a (Creditable for Basic Pay Purposes (1) Net Service this Period) and Item 22a(3) (Total Line (1) plus Line(2)) of the applicant's DD Form 214 shows the applicant had 1 year, 8 months, and 11 days of creditable service for basic pay purposes.

21.  Item 22b (Total Active Service) of the applicant's DD Form 214 shows the applicant had 1 year, 8 months, and 11 days of total active service.

22.  Item 22c (Foreign and/or Sea Service) of the applicant's DD Form 214 shows he served 1 year, 5 months, and 6 days of foreign service in USARPAC 
(U.S. Army, Pacific).

23.  Item 26a (Non-pay Periods Time Lost) of the applicant's DD Form 214 shows the entry "None," indicating the applicant had no lost time.



24.  The evidence shows that while the applicant was serving in Vietnam, he received and was found guilty by a special court martial for absenting himself without authority from his unit on 9 August 1968 and remaining so absent until 6 November 1968.  This absence was of 89 days or 2 months and 29 days in duration.

25.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's service, prescribes policies and procedures regarding separation documents.  This regulation specifies that the net service this period [Item 22a(1)] will be computed by subtracting Item 10c from 11d of the DD Form 214, less time lost under Title 10, U.S. Code, section 972, and time lost subsequent to normal expiration term of service.

26.  Army Regulation 635-5 also states that for Item 22c, enter the total active duty outside the continental limits of the United States for the period covered by the
DD Form 214 and the last overseas theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR [U.S. Army, Europe])."

27.  Army Regulation 635-5 further states that for Item 30 (Remarks) indicate Indochina and Korea service on or after 5 August 1964 by entering inclusive dates of service for Vietnam and Korea, e.g., "Vietnam – 25 Apr 70 through 28 May 71."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 20 June 1968.  The Purple Heart is not shown on his DD Form 214.  Therefore, he is entitled to have this award added to his DD Form 214.

2.  The applicant participated in six campaigns during his tour of duty in Vietnam.  Therefore, he is entitled to award of one silver service star and one bronze service star to be affixed to his already-awarded Vietnam Service Medal and to have them shown on his DD Form 214.

3.  The applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, the Marksman Marksmanship Qualification Badge with Pistol Bar, and the Combat Infantryman Badge.  These badges are not shown on the applicant's DD Form 214.  Therefore, he is entitled to have these badges added to his DD Form 214.



4.  The applicant served in a unit which was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  This unit award is not shown on his DD Form 214.  Therefore, he is entitled to have this unit awards added to his DD Form 214.

5.  The applicant was inducted and entered active duty on 26 April 1967 and was released from active duty on 4 March 1969.  This period is 1 year, 10 months, and 9 days in duration; however, the applicant had 89 days (2 months and 29 days) of time lost which must be subtracted from the overall period.  Subtracting 2 months and 29 days from the 1 year, 10 months, and 9 days leaves a total of
1 year, 7 months, and 11 days of creditable service for basic pay purposes.  Therefore, the applicant is entitled to a correction to his DD Form 214 to show his the correct amount of service.  The applicant is also entitled to a correction of Item 22a(3) (Total (Line (1) plus Line (2)) and 22b (Total Active Service) as these two items are directly related and inseparable.

6.  Item 26a of the applicant's DD Form 214 is incorrect as the entry currently shows, "None," indicating the applicant had no lost time.  The applicant had a period of absence without leave from 9 August 1968 to 6 November 1968, a duration of 89 days, for which he was administered a special court-martial and found guilty.  Therefore, his DD Form 214 should be corrected to show the total number of days time lost and the inclusive period of time lost.

7.  The applicant served in Hawaii for a total of 2 months and 7 days followed by service in Vietnam for a total of 1 year, 2 months, and 28 days for a total of 1 year, 5 months, and 6 days as currently shown in Item 22c of his DD Form 214.  Item 22c also correctly shows "USARPAC" as the last overseas area served during his period of service.  However, based on his service in Vietnam he is entitled to correction of Item 30 to show his inclusive period of service in Vietnam.

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.  deleting from Items 22a (1) and (3) and 22b of the applicant's DD Form 214 the entry 1 year, 8 months, and 11 days and replacing Items 22a(1) and (3) and 22b with the entry 1 year, 7 months , and 11 days of creditable service for basic pay purposes;

	b.  deleting from Item 24 of the applicant's DD Form 214 the Vietnam Service Medal;

	c.  adding to Item 24 of the applicant's DD Form 214 the Purple Heart; Vietnam Service Medal with one silver service star and one bronze service star; Republic of Vietnam Gallantry Cross with Palm Unit Citation; Combat Infantryman Badge; Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with Pistol Bar;

   d.  deleting from Item 26a of the applicant's DD Form 214 the entry "None" and replacing Item 26a with the entry "89 days – 9 Aug 68 to 6 Nov 68"; and
   
   e.  adding to Item 30 of the applicant's DD Form 214 the entry "Vietnam – 
5 Dec 67 through 2 Mar 69."



      __________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)                                         AR20080013047



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ABCMR Record of Proceedings (cont)                                         AR20080013047



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