IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080015628 


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 the Good Conduct Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar be removed from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 8 April 1972.  He also requests that the Good Conduct Medal, the Combat Infantryman Badge, and   the Republic of Vietnam Gallantry Cross with Palm Unit Citation be removed  from his DD Form 214 (Report of Separation from Active Duty) that was issued on 1 October 1975.

2.  The applicant essentially states that the aforementioned awards and badges shown on his DD Forms 214 are a mistake, and that all awards should be removed from these documents with the exception of the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 3 October 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He served in Germany from 19 February 1971 to 7 September 1971, then departed for the Republic of Vietnam on 22 October 1971.  He served in duty MOS 63B during his tour in Vietnam, initially with the 269th Signal Company, and then with the 535th Signal Company.  He returned to the continental United States on 7 April 1972 and was honorably released from active duty on 8 April 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  The DD Form 214 that was issued to him at the time of his release from active duty, which was prepared using temporary records, shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  On 7 September 1973, the applicant again enlisted in the Regular Army and continued to serve in primary MOS 63B.  He was also awarded secondary MOS 11B (Light Weapons Infantryman).  He served at Aberdeen Proving Ground, Maryland in MOS 63B throughout his second enlistment, and he was honorably discharged on 1 October 1975 under the provisions of paragraph 5-37 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel).  His DD Form 214 that was issued at the time of his discharge shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

4.  There are no orders awarding the applicant the Good Conduct Medal for the applicant's first period of active duty.  His military records also show that he was convicted by a special court-martial on 15 May 1970 for absenting himself without authority from his unit on or about 28 March 1970, and remaining so absent until on or about 20 April 1970.

5.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that at the time of the applicant’s assignment to 535th Signal Company, the company was cited for award of the Republic of Vietnam Gallantry Cross with Palm by Department of the Army General Orders Number 8, dated 1974.  It also shows that it was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 32, dated 1973.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) for his active duty service covered by his DD Form 214 for the period ending 8 April 1972 does not contain an entry showing that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, and there are no special orders in his military records which awarded him this marksmanship badge.

7.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have 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.  

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the U.S. Army Human Resources Command has advised in similar cases that during the Vietnam era, the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

9.  U.S. Army Vietnam Regulation Number 672-1 (Awards and Decorations) specifically governed award of the Combat Infantryman Badge to Army forces operating in South Vietnam.  This regulation specifically stated that criteria for award of the Combat Infantryman Badge identified the man who trained, lived, and fought as an infantryman and the Combat Infantryman Badge is the unique award established to recognize the infantryman and only the infantryman for his service.  Further, “the Combat Infantryman Badge is not an award for being shot at or for undergoing the hazards of day to day combat.”  This regulation also stated the Combat Infantryman Badge was authorized for award to infantry 

officers and to enlisted and warrant officer persons who have an infantry MOS and required that they must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) has consistently provided that all Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized would be entered on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Good Conduct Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar should be removed from his DD Form 214 that was issued on 8 April 1972.  He also contends that the Good Conduct Medal, the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation should be removed from his DD Form 214 that was issued on 1 October 1975.

2.  There are no orders in his military records awarding him the Good Conduct Medal for his first period of active duty.  The fact that he was convicted by a special court-martial on 15 May 1970 also barred him from being eligible for award of the Good Conduct Medal for his first period of active duty.  As the applicant is actually not entitled to the Good Conduct Medal, and he has requested that this award be removed from his DD Forms 214, it would be appropriate at this time to do so.

3.  The applicant served with signal units in a non-infantry MOS during his service in Vietnam and was clearly not awarded the Combat Infantryman Badge, even though his DD Forms 214 reflect that he was.  As the applicant is actually not entitled to award of the Combat Infantryman Badge, and he has requested that it be removed from his DD Forms 214, it would be appropriate to remove the Combat Infantryman Badge from his DD Forms 214 at this time.

4.  While the applicant requested that the Republic of Vietnam Gallantry Cross with Palm Unit Citation be removed from his DD Form 214 for the period ending 1 October 1975, general orders awarded this unit award to the 535th Signal Company while he was assigned to this unit.  General orders also awarded the Meritorious Unit Commendation to this unit while the applicant was assigned to this unit.  Therefore, it would be appropriate to leave the Republic of Vietnam Gallantry Cross with Palm Unit Citation on this DD Form 214, and correct this document to show the award of the Meritorious Unit Commendation.

5.  The applicant's DA Form 20 for his active duty service covered by his 
DD Form 214 for the period 3 October 1969 to 8 April 1972 does not contain an entry showing that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  There are also no special orders in his military records which awarded him this marksmanship badge.  As the applicant does not appear to be entitled to the Marksman Marksmanship Qualification Badge with Rifle Bar, and he has requested that this marksmanship qualification badge be removed from his DD Form 214 for the period 3 October 1969 to 8 April 1972, it would be appropriate at this time to do so.

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 from his 8 April 1972 and 1 October 1975 DD Forms 214 the Good Conduct Medal and the Combat Infantryman Badge;

	b.  deleting from his 8 April 1972 DD Form 214 the Marksman Marksmanship Qualification Badge; and

	c.  adding to his 1 October 1975 DD Form 214 the Meritorious Unit Commendation.

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 removing the Republic of 





Vietnam Gallantry Cross with Palm Unit Citation from his 8 April 1972 and 
1 October 1975 DD Forms 214.



      _______XXX_______________
               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)                                         AR20080015628



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ABCMR Record of Proceedings (cont)                                         AR20080015628



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