IN THE CASE OF:	  

		BOARD DATE:	        22 JANUARY 2009

		DOCKET NUMBER:  AR20080016019 


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 records be corrected to show his awards of the Combat Infantryman Badge (CIB), the Bronze Star Medal with two oak leaf clusters (BSM 2OLC), the Air Medal and the Presidential Unit Citation (PUC).

2.  The applicant states, in effect, that he served as an infantryman and was awarded the CIB by his company commander.  He goes on to state that he was awarded the BSM 2OLC and the Air Medal and they should be reflected on his DD Form 214.  He also states that he is entitled to be awarded the PUC. 

3.  The applicant provides a copy of his DD Form 214, a copy of his promotion orders to the rank of sergeant in military occupational specialty (MOS) 11B40, a copy of his Air Medal Certificate and a transmittal letter, and a copy of his orders and certificate for award of the BSM 2OLC.

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 volunteered for induction in Minneapolis, Minnesota on 21 May 1968.  He completed his basic training at Fort Campbell, Kentucky and his advanced individual training at Fort Huachuca, Arizona, as a light vehicle driver before being transferred to Germany on 21 October 1968. 

3.  The applicant volunteered for duty in Vietnam and departed Germany on 30 April 1969.  He arrived in Vietnam on 31 May 1969 and was assigned to Headquarters and Headquarters Company, 1st Battalion, 26th Infantry Regiment, 1st Infantry Division, for duty as a light vehicle driver.  He was advanced to the pay grade of E-4 on 5 November 1969.

4.  On 5 February 1970, he was promoted to the rank of sergeant (E-5) in MOS 11B40 (light weapons infantryman).  However, his records were annotated to reflect that he was promoted in MOS 63B40 (heavy vehicle mechanic).  His records do not contain a copy of his promotion orders.

5.  He departed Vietnam on 27 March 1970 and was transferred to Oakland Army Depot, California, where he was honorably released from active duty (REFRAD) on 28 March 1970 as an overseas returnee.  He had served 1 year, 10 months and 8 days of total active service and his DD Form 214 issued at the time of his REFRAD indicates that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal, the Army Commendation Medal and the Bronze Star Medal (BSM).  It also shows his specialty number and title in block 23a as 63B40 - HVY VEH MECH.

6.  A review of the applicant's records shows that he was awarded the BSM 2OLC and the Air Medal that were not included on his DD Form 214 at the time of his REFRAD.  His records also reflect that he had excellent conduct and efficiency ratings throughout his service and there is no indication that the applicant's commander took any action to disqualify him for award of the Good Conduct Medal.

7.  Additionally, in reviewing his records, there was no evidence to show that the applicant was ever awarded the CIB in competent orders or that he ever engaged the enemy in combat while serving as an infantryman with an infantry MOS, in an infantry unit.

8.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the pamphlet indicates that the applicant’s unit was subsequently awarded the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation and the Republic of Vietnam Civil Actions Honor Medal – First Class (RVNCAHM-FC) Unit Citation during the period he was assigned to the unit.  Additionally, he participated in four campaigns while assigned to Vietnam and is entitled to be awarded four bronze service stars for wear on his already-awarded VSM.  There is no evidence that his unit was ever awarded the Presidential Unit Citation (PUC).

9.  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 military occupational specialty (MOS).  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 672-5-1, 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.  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.  Commanders must notify individuals of the reasons for disqualification of the Good Conduct Medal (GCMDL).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded the BSM 2OLC and the Air Medal and it appears that an administrative error resulted in their not being included on his DD Form 214 at the time of his REFRAD.  Accordingly, it would be in the interest of justice to correct his records to reflect the award of the BSM 2OLC (vice BSM that is currently reflected) and the Air Medal.  Additionally, his primary MOS (PMOS) at the time was that of an 11B40 - light weapons infantryman and his DD Form 214 should be corrected in block 23a to reflect that information.

2.  After carefully examining the applicant’s record of service, it was determined that the applicant should have received the GCMDL for his service from 21 May 1968 through 28 March 1970.  This conclusion is based on the fact 
that the record is void of any derogatory information which would preclude the applicant from being awarded the GCMDL and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving the award.  

3.  The applicant not receiving the GCMDL was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served.  Therefore, in the interest of justice, this error should be corrected and the applicant should receive the GCMDL at this time.

4.  The evidence of record also shows that the applicant is entitled to awards of the RVNGC w/Palm Unit Citation, the RVNCAHM-FC Unit Citation and four bronze service stars for wear on his already awarded VSM.

5.  However, there is no evidence in the available records to show that the applicant was ever awarded the CIB or that he is entitled to award of the CIB.  Additionally, there is no evidence to show that his unit was awarded the PUC.  Therefore, in the lack of such evidence, there appears to be no basis to award him those awards at this time.

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.  awarding hm the GCMDL for the period 21 May 1968 through 28 March 1970; 

     b.  amending his DD Form 214 to add the BSM 2OLC (vice the BSM already reflected on his DD Form 214), the Air Medal, the GCMDL, the RVNGC w/Palm Unit Citation, the RVNCAHM-FC Unit Citation, and to show he is eligible to wear four bronze service stars on his already awarded VSM; and
     c.  amending his DD Form 214 in block 23a to reflect his PMOS as 11B40 - light weapons infantryman.

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 CIB and the PUC.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _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)                                         AR20080016019





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ABCMR Record of Proceedings (cont)                                         AR20080016019



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