IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20080017359 


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 records of his disabled father, a former service member (FSM), be corrected to show he was awarded the Army Commendation Medal (ARCOM), Philippine Defense Medal, Philippine Independence Medal, Combat Infantryman Badge (2nd Award), and all awards he is entitled to based on service in the Republic of Vietnam (RVN).

2.  The applicant states, in effect, that they were unaware of the errors in his father's record until they obtained a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 31 July 1966, which was needed for his mother's burial at Arlington National Cemetery on 3 July 2007.  He states that the DD Form 214 listed no awards, which he knows was not correct.

3.  The applicant further states that the FSM served in the Army Air Corps during World War II and that his service included tours with the 82nd Airborne Division and 10th Special Forces Group in Bad Tolz, Germany.  He further states the FSM became one of the first members of the Green Berets and served in Okinawa from 1959 through 1965, and was then sent to the RVN.  However, the only supporting documents of his RVN service beyond personal memories are photographs he sent home from the RVN.  He claims the FSM served three tours in the RVN, where several of his comrades were lost, and that the family spent 6 long years in Okinawa while the FSM served in the RVN.  He claims that although his records are void of any documents showing this service by the FSM, he finds it hard to believe that a man fully trained as a Green Beret and Army Ranger stationed in Okinawa did not serve in the RVN.
4.  The applicant also states that based on the FSM's RVN service, he believes he should have been awarded the Vietnam Service Medal, Republic of Vietnam Campaign Medal, and all other service awards authorized for RVN service.  He further states that the FSM is now over 85 years old, suffers from Alzheimer's disease, and remains in bad health since the death of his wife last summer.  He also claims the FSM served with two of the Army's elite fighting units and as a result his record should be corrected before he dies so that his children and grandchildren may know the contribution he made for world freedom.

5.  The applicant provides the following documents in support of his application:  National Personnel Records Center letter, dated 20 March 2008; self-authored statements; 1st Special Forces Group Killed in Action/Missing in Action Roster 1956-1974; Certificate of Training; Power of Attorney; unattributable statement; and photographs.

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 FSM's record contains a WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge), dated 23 February 1946, which documents the FSM's active duty service from 27 November 1942 through 23 February 1946.  This document shows that during World War II, the FSM served in the Army Air Corps in military occupational specialty 014 (Automotive Mechanic).  It further shows he attained the rank of sergeant and served in the Asiatic-Pacific Theater of operations from 29 January 1944 through 23 December 1945.  It further shows that he served with the 308th Airdrome Squadron and that he participated in the New Guinea, Southern Philippines, and Luzon campaigns of World War II.

3.  Item 33 (Decorations and Citations) of the FSM's WD AGO Form 53-55 shows that during this period of active duty service he earned the American Theater Ribbon, Asiatic Pacific Theater Ribbon with bronze arrowhead and three bronze service stars, Philippine Liberation Ribbon with one bronze service star, and the Army Good Conduct Medal.  Item 55 (Remarks) shows the FSM also earned the World War II Victory Medal.

4.  The FSM's official military personnel file (OMPF) contains a DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 28 February 1950, which covers the FSM's period of active duty service from 6 August 1947 through 28 February 1950.  Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of this document shows that during this period of active duty service the FSM earned the Parachutist Badge.  His OMPF also contains a DD Form 214, dated 25 March 1962, which documents his active duty service from 24 March 1956 through 25 March 1962.  Item 12 (Last Duty Assignment and Major Command) of this document lists the FSM's unit as Company C, 1st Special Forces Group (Airborne), 1st Special Forces, Army Post Office (APO)  331 [sic].  Item 24c (Foreign and/or Sea Service) shows he completed 3 years, 7 months, and 23 days of overseas service and item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the Army Good Conduct Medal (2nd Award), Expert Marksmanship Qualification Badge with Carbine Bar and Marksman Marksmanship Qualification Badge with Pistol Bar during the period of active duty service covered by the DD Form 214.

5.  The FSM's OMPF also contains a DD Form 214, dated 25 March 1965, which documents his active duty service from 26 March 1962 through 25 March 1965.  Item 12 of this document shows his last duty assignment as Company C, 1st Special Forces Group (Airborne), 1st Special Forces, APO  96331 [sic].  Item 24c shows he served overseas for a period of 3 years and item 26 shows he earned the Combat Infantryman Badge, Army Good Conduct Medal (3rd Award), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) during the period covered by the DD Form 214.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Okinawa from 3 August 1959 through 19 July 1965.  Item 38 (Record of Assignments) shows that during his tour in Okinawa he was assigned to Headquarters and Headquarters Company or Company C, 1st Special Forces Group from 19 August 1959 through 26 August 1959, 27 October 1959 through 22 December 1960, and 26 March 1962 through 9 August 1965.  It also shows that he was assigned to the 14th Special Forces Operations Detachment from 27 August 1959 through 26 October 1959 and to the 137th Ordnance Company from 23 December 1960 through 25 March 1962.

7.  Item 41 of the FSM's DA Form 20 shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Army of Occupation Medal with Germany Clasp, Senior Parachutist Badge, Army Good Conduct Medal (3rd Award), Master Parachutist Badge, Armed Forces Expeditionary Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Carbine Bar, and Sharpshooter Marksmanship Qualification Badge with Pistol Bar.

8.  The applicant's record is void of any orders or other documents showing he served in the Republic of Vietnam during his active duty service.  It is also void of any documents or orders that indicate he was ever recommended for or awarded the ARCOM or a second award of the CIB by proper authority while serving on active duty.

9.  On 31 July 1966, the FSM was honorably released from active duty for the purpose of retirement in the rank of MSG after completing a total of 22 years and 1 month of active duty service.  The DD Form 214 he was issued at the time shows no awards during the period covered by the DD Form 214 of 26 March 1965-31 July 1966.  Item 32 (Remarks) contains the entry, "I-24c:  USARPAC (Okinawa)," which indicates his last overseas service was completed in Okinawa.

10.  The applicant provides an unattributable statement and photographs as evidence that the FSM served in the RVN during the periods May 1962 through November 1962 and July 1963 through January 1964.

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-12 contains guidance on award of the AFEM.  It provides, in pertinent part, that the AFEM is authorized for participants in military operations within a specific geographic area during a specified time period.  An individual, who was not engaged in actual combat or equally hazardous activity, must have participated in operations or in direct support of operations for 30 consecutive or 60 nonconsecutive days.  The AFEM is authorized for service in Vietnam between 1 July 1958 and 3 July 1965.  Service members who earned the AFEM may elect to receive the Vietnam Service Medal instead of the AFEM.  However, no service member may be issued both medals for service in Vietnam.  The AFEM was not authorized for Okinawa or Germany during the periods the FSM was assigned to those areas.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, the VSM is awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace there over after 3 July 1965 through 28 March 1973; however, members may not receive both the AFEM and VSM for service in the RVN.

12.  Paragraph 3-17 of Army Regulation 600-8-22 contains guidance on the ARCOM.  It states, in pertinent part, that the ARCOM is awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  Award may be made to a member of the Armed Forces of a friendly foreign nation who, after 1 June 1962, distinguishes himself or herself by an act of heroism, extraordinary achievement, or meritorious service which has been of mutual benefit to a friendly nation and the United States.

13.  Chapter 8 of Army Regulation 600-8-22 contains guidance on award of the CIB and states, in pertinent part, that in order to be eligible for the CIB, members must have held and served in an infantry MOS; they must have served in a qualifying infantry unit of brigade, regimental, or smaller size; and they must have been present and personally participated with a qualifying infantry unit while it was actively engaged in ground combat with enemy forces.  The CIB was authorized for conflict in the Republic of Vietnam during the period 2 March 1961 through 28 March 1973, combined with qualifying service in Laos during the period 19 April 1961 to 6 October 1962.  Service in the Republic of Vietnam conflict is recognized by one award only regardless of whether a Soldier has served one or multiple tours in the qualifying area(s).  The CIB was not authorized for Okinawa or Germany during the FSM's assignments to those areas.

14.  Paragraph 9-7 of Army Regulation 600-8-22 states, in pertinent part, that the Philippine Defense Ribbon is awarded for service in the defense of the Philippines from 8 December 1941 to 15 June 1942 under either of the following conditions:  participation in any engagement against the enemy in Philippine territory, in Philippine waters, or in the air over the Philippines or over Philippine waters; or assigned or stationed in Philippine territory or in Philippine waters for not less than 30 days during the period.

15.  Paragraph 9-9 of Army Regulation 600-8-22 states, in pertinent part, that the Philippine Independence Ribbon authorized by Department of the Army Circular 59, dated 1948, is authorized to any recipient of both the Philippine Defense and Philippine Liberation Ribbons.

16.  Paragraph 9-13 of Army Regulation 600-8-22, states, in pertinent part, that the Republic of Vietnam Campaign Medal is awarded by the Government of the Republic of Vietnam to members of the United States Armed Forces who have served in the Republic of Vietnam for 6 months during the period 1 March 1961 to 28 March 1973, inclusive.

17.  Department of the Army General Order Number 8, dated 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

18.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention the FSM should receive service awards for the RVN was carefully considered and found to have merit.  However, although it is reasonable to conclude the FSM served in the RVN based on his having earned the CIB and AFEM, which were not authorized for his other areas of overseas service during the periods he was assigned, the actual dates and total service completed in the RVN cannot be accurately established from the existing records and/or the independent evidence provided by the applicant.  As a result, only awards that are not based on a defined period of service in the RVN may be awarded by this action, which precludes award of the RVN Campaign Medal and bronze service stars for campaign participation.  In this case, that leaves only the RVN Gallantry Cross with Palm Unit Citation which is authorized for any period of service in the RVN.  As a result, it would be appropriate to add this award to the FSM's record and DD Form 214 at this time.

2.  The applicant's contention that the FSM should be awarded the Philippine Independence Medal was also carefully considered.  However, by regulation, this award is authorized to members who earned both the Philippine Defense Ribbon and Philippine Liberation Ribbon.  Although the FSM earned the Philippine Liberation Ribbon, he did not earn the Philippine Defense Ribbon.  As a result, he does not meet the regulatory standard for award of the Philippine Independence Medal.

3.  The applicant's contention that the FSM should be awarded the ARCOM was also carefully considered.  However, the FSM's record is void of any documents or orders indicating he was ever recommended for or awarded the ARCOM.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  However, while the available evidence is insufficient to award the FSM the ARCOM, this in no way affects the applicant’s right to pursue his claim on behalf of the FSM for the ARCOM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant's contention of the FSM's entitlement to a second award of the CIB was carefully considered.  The evidence of record confirms the FSM was awarded the CIB for combat actions in 1964, during the Vietnam conflict; however, the record is void of any indication that the FSM served in any other area qualifying for award of the CIB.  He was in the Army Air Corps during World War II and thus was not eligible for award of the CIB.  He did not serve during the Korean War.  Therefore, there is also an insufficient evidentiary basis to support granting this portion of the requested relief.

5.  The applicant's contention that the FSM's record and final DD Form 214 should be corrected to show he served three tours in the RVN and to include all RVN service awards due for this service was also carefully considered.  However, as indicated earlier, absent any evidence of record corroborating specific periods of RVN service, it is impossible to document this service or to grant awards based on unverified dates of service in the RVN.  As a result, no additional awards or campaign credit can be granted based on the existing evidence of record and independent evidence provided by the applicant.

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 showing his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and by providing him a correction to his separation document that reflects these changes.

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 the Philippine Independence Medal, Army Commendation Medal, and Combat Infantryman Badge (2nd Award).



      _________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)                                         AR20080017359



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ABCMR Record of Proceedings (cont)                                         AR20080017359



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