IN THE CASE OF:	

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080014690 


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, correction of his record to show award of the Combat Infantryman Badge, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with Bronze Service Star, Republic of Vietnam Campaign Medal with Device (1960), Presidential Unit Citation, and any other awards or decorations to which he is entitled.

2.  The applicant states that he believes he is entitled to the Combat Infantryman Badge, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with Bronze Service Star, Republic of Vietnam Campaign Medal with Device (1960), and Presidential Unit Citation.  The applicant continues, in effect, that he discovered these errors while reviewing his records in preparing a claim for service-connected disabilities.  He concludes that this application is a resubmission of his previous request which was returned without action because his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was not available for review.

3.  The applicant provides a copy of his previously submitted DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), a letter from the Army Board for Correction of Military Records (ABCMR), and his DD Form 214 as documentary evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  Title 10, United States 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 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 that he enlisted in the Regular Army and entered active duty on 28 December 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 57C (Tire Repairman).  The highest rank he attained while serving on active duty was the rank of private first class (PFC)/pay grade E-3.  The applicant served a tour of duty in the Republic of Vietnam during the period 22 September 1970 through 7 December 1970.  The applicant was released from active duty on 8 December 1970 and transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  Item 20 (Military Occupational Specialties) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was awarded MOS 57C.  This form further shows that 57C is the only MOS the applicant was ever awarded or held during his active duty service.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam, the applicant served in the 625th Supply and Service Company from 28 September 1970 through 29 November 1970.  However, the entries for "Duty MOS" and "Principal Duty" are blank. 

5.  Item 41 (Awards and Decorations) shows he was awarded or authorized to wear the National Defense Service Medal, Vietnam Service Medal, Overseas Service Bar, and the Sharpshooter Marksmanship Qualification Badge with M-14 and M-16 Rifle Bars.  Item 41 of this form does not show award of the Combat Infantryman Badge, Good Conduct Medal, Republic of Vietnam Campaign Medal with Device (1960), Presidential Unit Citation, or any bronze service stars for wear on the applicant's already-awarded Vietnam Service Medal.

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 or authorized to wear the National Defense Service Medal, Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with M-14 and M-16 Rifle Bars.  Item 24 of this form does not show award of the Combat Infantryman Badge, Good Conduct Medal, Republic of Vietnam Campaign Medal with Device (1960), Presidential Unit Citation, or any bronze service stars for wear on the applicant's already-awarded Vietnam Service Medal.  The applicant authenticated the administrative accuracy of this document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his release from active duty.

7.  There are no indications in the applicant's service personnel records which show that he was awarded or recommended for award of the Combat Infantryman Badge or the Good Conduct Medal.

8.  Headquarters, Troop Command, United States Army Training Center, Fort Ord, California, Summary Court-Martial (SCM) Order 1006, dated 17 November 1969, shows the applicant appeared before a summary court-martial.  The applicant was charged with three specifications of willfully disobeying a lawful order, which is in violation of Article 92 of the Uniform Code of Military Justice.  He was also charged with one specification of failing to go at the prescribed time to his proper place of duty, which is in violation of Article 86 of the Uniform Code of Military Justice.  The applicant pled guilty to all specifications and charges and was subsequently found guilty of all of the same.  He was sentenced to reduction to private (PV1)/E-1; confinement at hard labor for 30 days; and forfeiture of $82.00 for one month.  The sentence was adjudged on 31 October 1969.  On 
17 November 1969, the SCM Convening Authority approved the sentence and ordered it executed.  However, the execution of the confinement at hard labor for 30 days was suspended for 30 days, at which time, unless sooner vacated, would be remitted without further action. 

9.  The applicant provides a letter from the Director of the ABCMR, Arlington, Virginia, dated 24 October 2006, which was rendered in response to his submission of a request for correction of his military record.  The Director of the ABCMR, informed the applicant that since his DD Form 214 was not available for review, the Board could not take any further action at the time and that his case was administratively closed.  The Director of the ABCMR also informed the applicant that he may reapply whenever he could submit a copy of his DD Form 214.


10.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the 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.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 8 contains guidance on award of combat and special skill badges, and paragraph 8-6 contains guidance on award of the Combat Infantryman Badge.  It states, in pertinent part, that there are three basic requirements for the Combat Infantryman Badge.  The member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the Combat Infantryman Badge.

12.  Army Regulation 600-8-22 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.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Appendix B of this regulation shows the campaigns for Vietnam.  During the applicant's tour of duty in the Republic of Vietnam he participated in one campaign:  the Vietnam Counteroffensive, Phase VII (1 July 1970 – 30 June 1971).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

13.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Campaign Medal correctly known as the Republic of Vietnam Campaign Medal with Device (1960).  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 Republic of Vietnam Campaign Medal.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This regulation shows the unit the applicant was assigned to while serving in the Republic of Vietnam was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Presidential Unit Citation is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.  Department of the Army Pamphlet 672-3 shows the applicant's unit was not awarded the Presidential Unit Citation during his period of assignment to the unit.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show award of the Combat Infantryman Badge, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Presidential Unit Citation, and any other award or decoration to which he is entitled.

2.  The applicant's contention that he is entitled to award of the Combat Infantryman Badge for his service in the Republic of Vietnam was carefully considered.  However, by regulation, in order to support award of the Combat 
Infantryman Badge, there must be evidence that a member held and served in an infantry MOS in a qualifying infantry unit, and that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.

3.  The applicant's available records are void of any evidence indicating that he fulfilled any of the prerequisites for award of the Combat Infantryman Badge.  He did not possess an infantry MOS and was not assigned to an infantry unit.  Additionally, there is no evidence he was personally present and participating with an infantry unit while it was engaged in active ground combat with enemy forces.  As a result, the regulatory burden of proof necessary to support award of the Combat Infantryman Badge has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the Republic of Vietnam and who faced similar circumstances to grant the requested relief.

4.  The applicant's contention that he is entitled to award of the Good Conduct Medal was carefully considered and determined to lack merit.  Army Regulation 672-5-1 provided that in order to be eligible for award of the Good Conduct Medal, the Soldier must have had no convictions by a court-martial.  Evidence shows the applicant was convicted by a Summary court-martial after being found guilty of four violations of the Uniform Code of Military Justice.  As a result, he is not eligible for award of the Good Conduct Medal.

5.  The applicant's DD Form 214 shows he was previously awarded the National Defense Service Medal.  Therefore, his record is properly constituted as pertains to award of the National Defense Service Medal and there is no requirement for additional administrative or Board action pertaining to this matter.

6.  Records show the applicant participated in one campaign while serving in the Republic of Vietnam.  The record also shows the applicant was previously awarded the Vietnam Service Medal.  Therefore, he is entitled to the Vietnam Service Medal with one bronze service star.

7.  General orders show the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure of assignment. Therefore, he is entitled to have his records corrected to show this foreign unit award.

8.  Army Regulation 600-8-22 provides the Republic of Vietnam Campaign Medal with Device (1960) 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 six 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 and were evacuated prior to completing six months of service due to wounds resulting from hostile action were also entitled to this award.  Evidence shows the applicant did not complete a qualifying period of service for award of the Republic of Vietnam Campaign Medal with Device (1960).  Therefore, he is not entitled to have his records corrected to show this foreign award.

9.  Department of the Army Pamphlet 672-3 shows the applicant's unit was not awarded the Presidential Unit Citation during his period of assignment to the unit.
Therefore, he is not entitled to have his records corrected to show receipt of this unit 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:

	a.  deleting the Vietnam Service Medal from his DD Form 214; and

	b.  adding the Vietnam Service Medal with one bronze service star and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to his DD Form 214.

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 Combat 

Infantryman Badge, Good Conduct Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Presidential Unit Citation to the applicant and adding these awards to his DD Form 214.



      ___________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)                                         AR20080014690



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ABCMR Record of Proceedings (cont)                                         AR20080014690



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