IN THE CASE OF:	

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080015487 


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 that his separation document, DD Form 214, be corrected to show the awards reflected on the documents he submits in support of his request.

2.  The applicant states that he would like an updated copy of his DD Form 214.

3.  The applicant provides his DD Form 214, General Orders Number 34 dated 3 August 1966 which awards Company A, 502nd Aviation Battalion the Valorous Unit Award (VUA), a letter of commendation, and a letter from the National Personnel Records Center (NPRC) which shows three awards not listed on the applicant's DD Form 214 (the Bronze Star Medal or BSM, the Good Conduct Medal or GCM, and the Armed Forces Expeditionary Medal (AFEM)).

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 that he enlisted in the Regular Army on 11 October 1963, was awarded the military occupational specialty of engineer equipment assistant, and was promoted to pay grade E-5.

3.  While assigned to an engineer battalion in Hawaii, the applicant was attached to Company A, 502nd Aviation Battalion in Vietnam as a helicopter gunner (door gunner) from 22 February to 8 June 1965.  He returned to his unit in Hawaii, Company D, 65th Engineer Battalion, on 9 June 1965 as an engineer equipment assistant.  That unit was deployed to Vietnam, and the applicant arrived back in Vietnam on 16 January 1966.  He departed Vietnam on 24 September 1966 and was honorably released from active duty on 26 September 1966 as an overseas returnee.  The awards listed on the DD Form 214 he was issued includes the Vietnam Service Medal.

4.  The applicant's military records contain General Orders Number 108 dated 28 August 1966 which awarded the applicant the GCM for the period 11 October 1963 to 30 September 1966. 

5.  The applicant's DA Form 20, Enlisted Qualification Record, shows (in pertinent part) that the applicant was entitled to the AFEM (Vietnam) and was awarded the GCM.

6.  There are no orders in the applicant's records awarding him the BSM.  A review of the database for orders published during the Vietnam War (ADCARS) did not reveal orders for the BSM.

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Armed Forces Expeditionary Medal is authorized for participants in military operations within a specific geographic area during a specified time period.  Paragraph 2-13d specifically provides that individuals qualified for the Armed Forces Expeditionary Medal for service in Vietnam from 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal.  Upon request, a unit personnel officer may award the Vietnam Service Medal in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual.  No person will be entitled to both awards for Vietnam service.



8.  Department of the Army General Orders Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

9.  Department of the Army Pamphlet 672-3, Unit Citation and Campaign Participation Credit Register, shows the pertinent identified campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal. The periods in which the applicant served are:  The Vietnam Defense Campaign (8 March 1965 through 24 December 1965); the Vietnam Counteroffensive (25 December 1965 through 30 June 1966); and the Counteroffensive Phase III (1 July 1966 through 29 January 1968).

DISCUSSION AND CONCLUSIONS:

1.  The document provided by the applicant indicates that he was awarded the BSM.  However, there is no evidence in the applicant’s records and the applicant has not provided any evidence to confirm that he was awarded the BSM.

2.  The Board reviews a case with a presumption of regularity; that what the Army did was proper and just.  The burden to prove otherwise rests with the applicant.

3.  Since the applicant has not overcome this burden of proof, there is no basis for adding the BSM to his DD Form 214.

4.  As for the AFEM, the applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal.  Since he cannot have both the Vietnam Service Medal and the AFEM, it must be presumed that the applicant chose the Vietnam Service Medal in lieu of the AFEM while he was in Vietnam.  As such, there is no basis for adding the AFEM to the applicant's DD Form 214. 

5.  However, the applicant is entitled to a correction of his records to reflect his GCM.  In addition, the applicant is entitled to have the VUA added to his DD Form 214 since he served with Company A, 502nd Aviation Battalion from 4 to   6 April 1965, the period cited for award of the VUA for that unit.

6.  The applicant is also entitled to three bronze service stars to be affixed to his Vietnam Service Medal, and to the Republic of Vietnam Gallantry Cross with Palm Unit Citation.


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 adding to his DD Form 214 the VUA, the GCM, three bronze service stars to be affixed to his already-awarded Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 adding the BSM and the AFEM 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)                                         AR20080015487



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ABCMR Record of Proceedings (cont)                                         AR20080015487


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