IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20080016308 


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 two awards of the Purple Heart; correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show awards of the Air Medal, the Ranger Tab, and the Meritorious Unit Commendation; and correction of his rank/grade from "specialist four (SP4)/E-4" to "sergeant (SGT)/E-5."

2.  The applicant states that:

	a.  he was promoted to SGT/E-5 in December 1970 and served as a SGT until his discharge on 22 November 1971; 

	b.  during the Cambodia campaign, while serving with the 4th Infantry Division, he was wounded in May 1970 and treated at the battalion aid station and sent back to the field and that he was wounded again and was sent to a hospital at Cam Ranh Bay; 

	c.  his Air Medal is not shown on his DD Form 214; and

	d.  he was awarded the Ranger Tab and the Meritorious Unit Commendation.

3.  The applicant provides a copy of his DD Form 214, dated 22 November 1971; a copy of General Orders Number 1337, issued by Headquarters, 101st Airborne Division, on 14 February 1971, awarding him the Air Medal; and several pictures of himself in support of his 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 records show he enlisted in the Regular Army for a period of 3 years on 29 November 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His records also show that upon successful completion of basic combat training, he earned a promotion to the rank of private/E-2, effective 29 March 1969 in accordance with paragraph 7-19a of Army Regulation 600-200 (Enlisted Personnel Management System). 

3.  On 1 October 1969, Headquarters, 7th Infantry Division, published Special Orders Number 30, announcing the applicant's promotion to private first class (PFC)/E-3, effective 1 October 1969.

4.  The applicant's records further show that he completed the following periods of foreign service:

	a.  he served in Korea from on or about 28 May 1969 to on or about 25 November 1969 and was assigned to Company A, 2nd Battalion, 17th Infantry; 

	b.  he served in the Republic of Vietnam from on or about 13 March 1970 to on or about 12 March 1971.  He was assigned as follows:

		(1)  Company C, 3rd Battalion, 8th Infantry, from on or about 28 March 1970 to on or about 28 July 1970;

		(2)  Company K, 75th Infantry, from on or about 28 July 1970 to on or about 9 December 1970; and 

		(3)  Company L, 75th Infantry, from on or about 9 December 1970 to on or about 13 February 1971; and

	c.  he served in Germany from on or about 7 April 1971 to on or about 18 November 1971.  He was assigned to the 503rd Military Police Company, 3rd Armored Division.

5.  On 12 April 1970, Headquarters, 4th Infantry Division, published Special Orders Number 112, announcing the applicant's appointment to the temporary grade of SP4, effective 10 April 1970.  

6.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of SP4/E-4.  

7.  There are no Special Orders in the applicant’s record that show he was promoted to SGT/E-5.

8.  On 22 August 1971, Headquarters, 3rd Armored Division, published Special Orders Number 234, directing the applicant’s reassignment to the U.S. Army Transition Center, Fort Dix, NJ, for the purpose of separation effective 24 November 1971.  The orders listed the applicant’s rank as that of a SP4.

9.  On 22 November 1971, Headquarters, Fort Dix, NJ, published Special Orders Number 326, directing the applicant’s release from active duty effective 24 November 1971 and transfer to the U.S. Army Reserve (USAR) Control Group.  The orders listed the applicant’s rank as that of a SP4.

10.  The applicant’s records show he was honorably released from active duty in the rank/grade of SP4/E-4 on 22 November 1971 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his military service obligation.

11.  Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of the applicant’s DD Form 214 show the entries SP4 and E-4 respectively.  Additionally, item 6 (Date of Rank) shows the entry “10 April 1970."

12.  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, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Bronze Star Medal, the Army Commendation Medal, the Armed Forces Expeditionary Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 24 does not show award of the Purple Heart, the Air Medal, the Ranger Tab, and/or the Meritorious Unit Commendation.

13.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

14.  The applicant's medical records are not available for review with this case.

15.  Item 40 (Wounds) of the applicant’s DA Form 20 shows a blank entry.  

16.  The applicant's name is not shown on the Vietnam Casualty Roster.

17.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

18.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

19.  The applicant’s records do not contain orders awarding him the Ranger Tab. Furthermore, his records do not show he completed the Ranger Course.

20.  Army Regulation 600-8-22, in pertinent part, sets forth the requirements for award of the Ranger Tab.  The Ranger Tab is awarded for successful completion of a Ranger Course conducted by the U.S. Army Infantry School or the Ranger Training Command or award of the Combat Infantryman Badge while serving in World War II as a member of a Ranger Battalion (1st to 6th inclusive) or in the 5307th Composite Unit (Merrill’s Marauders).

21.  Headquarters, 101st Airborne Division, General Orders Number 1337, dated 14 February 1971, show the applicant was awarded the Air Medal for meritorious achievement while participating in aerial flight from 20 March 1970 to 20 December 1970 in the Republic of Vietnam.


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

23.  Headquarters, 3rd Advanced Individual Training (AIT) Brigade (Infantry), U.S. Army Training Center, Fort Gordon, GA, Special Orders Number 71, dated 3 April 1969, show the applicant was awarded the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60). 

24.  Item 38 (Record of Assignment) of the applicant’s DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his military service.  Furthermore, his records do not show any derogatory information throughout his military service.

25.  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.

26.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows Company L, 75th Infantry, was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation from 2 December 1969 to 8 January 1971, based on Department of the Army General Orders Number 24, dated 1972.  

27.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Winter-Spring 1970, the DA Sanctuary Counteroffensive, and the Vietnam Counteroffensive, Phase VII, campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

28.  Army Regulation 600-8-22 states that the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The area of eligibility and period of eligibility are as follows: the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, all air spaces above the land, and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days.

29.  Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his rank/grade as SGT/E-5, two awards of the Purple Heart, the Air Medal, the Ranger Tab, and the Meritorious Unit Commendation. 

2.  With respect to the Air Medal, general orders show the applicant was awarded the Air Medal for meritorious achievement while participating in aerial flight from 20 March 1970 to 20 December 1970 in the Republic of Vietnam which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award..

3.  The evidence of record confirms that the applicant served honorably during the period 29 November 1968 through 22 November 1971.  He attained the rank of SP4/E-4; completed various periods of foreign service, including Korea, Vietnam, and Germany; was awarded various combat awards; and received "excellent" conduct and efficiency ratings throughout his military service.  Furthermore, his record is void of any derogatory information.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal.  Therefore, he is entitled to correction of his records to show this award. 

4.  General orders awarded one of the applicant’s units of assignment the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his records; therefore, he is entitled to correction of his records to show this unit award.

5.  Special Orders awarded the applicant the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60) which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.
6.  The evidence of record shows that the applicant served in Korea from on or about 28 May 1969 to on or about 25 November 1969; therefore, he served a qualifying period for award of the Korea Defense Service Medal and is entitled to correction of his records to show this award.

7.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam; therefore, he is entitled to award of three bronze service stars to be affixed to the Vietnam Service Medal.

8.  With respect to the two awards of the Purple Heart, there are no general orders that show the applicant was awarded the Purple Heart; the applicant’s name is not shown on the Vietnam Casualty Roster; and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case

9.  With respect to the applicant’s rank/grade, the evidence of record shows that at the time of his separation on 24 November 1971, the applicant held the rank/grade of SP4/E-4.  His record is void of any promotion orders to SGT/E-5 and item 33 of his DA Form 20 does not show an entry for a promotion and/or appointment to SGT/E-5.  In the absence of orders that show he was promoted and/or appointed to the rank/grade of SGT/E-5, there is insufficient evidence to grant the applicant relief with respect to this issue.

10.  With respect to the Ranger Tab, there is no evidence in the applicant’s records that he completed the Ranger Course.  His record is void of any orders that show he was awarded the Ranger Tab.  Therefore, there is insufficient evidence to grant him the requested relief with respect to this issue. 

11.  With respect to the Meritorious Unit Commendation, although the applicant was reassigned to and served with various units during his tour in the Republic of Vietnam, none of the units he served with was awarded the Meritorious Unit Commendation during the period he served with those units.  Therefore, there is insufficient evidence to grant him the requested relief with respect to this issue. 






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 the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 29 November 1968 through 22 November 1971; and

	b.  adding the Good Conduct Medal (1st Award), the Air Medal, the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Korea Defense Service Medal, and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal 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 two awards of the Purple Heart, his rank/grade of SGT/E-5, the Ranger Tab, and the Meritorious Unit Commendation. 



      _______ _   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)                                         AR20080016308



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ABCMR Record of Proceedings (cont)                                         AR20080016308



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