IN THE CASE OF:	  

		BOARD DATE:	  5 March 2009

		DOCKET NUMBER:  AR20080017868 


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 awards listed in a Tank and Automotive Command (TACOM) letter and the Bronze Star Medal (BSM) with oak leaf cluster be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that all of his awards are not listed on his DD Form 214 and he would like all the awards listed on the TACOM letter he provides added at this time.  He also believes he was awarded the BSM with oak leaf cluster. 

3.  The applicant provides a TACOM letter 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 and entered active duty on 9 November 1965 and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 29 September 1967 through 24 September 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A, 2d Battalion, 327th Infantry Regiment, 101st Airborne Division, performing duties in MOS 11B as a fire team leader.  Item 38 also shows he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Item 40 (Wounds) contains entries indicating he received fragmentation wounds on 5 February 1968 and a gunshot wound to his right leg on 1 June 1968, and item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  Parachutist Badge, National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Purple Heart (PH), Combat Infantryman Badge (CIB), RVN Campaign Medal with Device (1960), and three marksmanship badges that are not completely legible.

4.  The applicant's official military personnel file (OMPF) is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  The OMPF also contains Headquarters, 101st Airborne Division General Orders Number 1351, dated 11 June 1968, which awarded him the PH for being wounded in action on 5 February 1968.  The OMPF is void of any BSM award orders.

5.  On 28 September 1968, the applicant was honorably released from active duty in the rank of sergeant after completing 2 years, 10 months, and 20 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  NDSM, VSM, RVN Campaign Medal, Parachutist Badge, PH, and CIB.

6.  The applicant provides a TACOM letter that indicates he was issued the following awards:  PH with 1st oak leaf cluster (2nd Award), NDSM, VSM with two bronze service stars, CIB, RVN Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar, Marksman Marksmanship Qualification Badge with Pistol Bar, and Parachutist Badge.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam casualty roster.  This roster contained two entries pertaining to the applicant that confirm he was twice wounded in action in the RVN, first on 5 February 1968 and again on 1 June 1968.
8.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing general orders issued during the Vietnam era, which is maintained by the United States Army Human Resources Command Military Awards Branch, was also reviewed during the process of this case.  There were no BSM or other award orders pertaining to the applicant in the ADCARS.

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, and Vietnam Counteroffensive Phase V campaigns.

10.  Chapter 4 of the awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This normal qualifying period is 3 years; however, for the first award only, upon termination of service on or after 27 June 1950, a period of more than 1 but less than 3 years is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (2d Battalion, 327th Infantry Regiment) earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that all of his awards are not included on his DD Form 214 was carefully considered and found to have merit.  The evidence of record confirms the applicant was twice wounded in action in the RVN.  As a result, he is eligible for two awards of the PH and his record and DD Form 214 should be corrected accordingly.


2.  The evidence of record also confirms that the applicant received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 9 November 1965 through 28 September 1968.

3.  The TACOM letter he provides shows he earned three marksmanship badges, which are listed as the Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar.  As a result, notwithstanding the fact that the badges listed are not completely legible on the DA Form 20 on file, given the TACOM was a Department of the Army agency responsible for issuing medal sets, it is reasonable to presume these badges were issued based on accurate records available to the TACOM at the time and it would serve the interest of equity to also add these to his record and separation document at this time.

4.  Further, based on his RVN service and campaign participation, the applicant is also eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 4 bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214 at this time.

5.  The applicant's contention that he was awarded the BSM with oak leaf cluster was also carefully considered.  However, his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority, and there are no BSM orders on file in the ADCARS.  As a result, absent any evidence of record or independent evidence provided by the applicant that shows he was awarded the BSM with oak leaf cluster while serving on active duty, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

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 him the Purple Heart with 1st oak leaf cluster (2nd Award) for being wounded in action in the Republic of Vietnam on 1 June 1968;

	b.  awarding him the Army Good Conduct Medal for his qualifying honorable active duty service from 9 November 1965 through 28 September 1968;

	c.  amending item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry, "National Defense Service Medal, Purple Heart with 1st oak leaf cluster (2nd Award), Army Good Conduct Medal, Vietnam Service Medal with 4 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar"; and

	d.  providing him a correction to his DD Form 214 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 award of the Bronze Star Medal with oak leaf cluster.



      ___________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)                                         AR20080017868



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ABCMR Record of Proceedings (cont)                                         AR20080017868



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