IN THE CASE OF:	  

		BOARD DATE:	        14 APRIL 2009

		DOCKET NUMBER:  AR20080019059


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 award of the Air Medal.

2.  The applicant states he was an infantryman assigned to Company E, 4th Battalion, 3rd Infantry, 11th Brigade, 23rd Infantry Division.  He participated in more than 25 aerial combat missions.

3.  The applicant provides no additional information.

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 was inducted into the Army of the United States on 16 March 1970.  His DA Form 20 (Enlisted Qualification Record) shows he underwent 
Basic Combat and Advanced Individual Training at Fort Jackson, SC, where he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  Shortly after completion of his training, he was assigned to Vietnam for duty as an infantryman with Company E, 4th Battalion, 3rd Infantry, 11th Brigade, 23rd Infantry Division.  His DA Form 20 also shows award of the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal with Device 1960, and one Army Commendation Medal.  It also shows "excellent" conduct and efficiency ratings throughout his service.

3.  The applicant was seriously wounded on 16 February 1971 and he was ultimately evacuated to the United States for medical treatment.  On 21 March 1972, he was retired by reason of physical disability, rated at 60 percent.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Army Commendation Medal, Purple Heart, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device 1960, and Combat Infantryman Badge.  It does not show the Air Medal.

4.  The applicant’s records contain the following orders:

	a.  General Orders Number 00558, Headquarters (HQ), 23rd Infantry Division, Vietnam, dated 14 January 1971, awarding the applicant the Army Commendation Medal;

	b.  General Orders Number 05741, HQ, 23rd Infantry Division, Vietnam, dated 25 May 1971, awarding the applicant a second Army Commendation Medal;

	c.  General Orders Number 2798, HQ, 23rd Infantry Division, Vietnam, dated 12 March 1971, awarding the applicant the Purple Heart;

	d.  Special Orders Number 329, HQ, 23rd Infantry Division, Vietnam, dated 25 November 1970, awarding the applicant the Combat Infantryman Badge;

	e.  Special Orders Number 119, HQ, 3rd Advanced Individual Training Brigade, Fort Jackson, SC, dated 26 June 1970, awarding the applicant the Expert Marksmanship Qualification Badge with Rifle Bar (M-14);
   
   f.  Special Orders Number 117, HQ, 3rd Advanced Individual Training Brigade, Fort Jackson, SC, dated 23 June 1970, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar (M-16);
	g.  Special Orders Number 113, HQ, 3rd Advanced Individual Training Brigade, Fort Jackson, SC, dated 18 June 1970, awarding the applicant the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60);

   h.  Special Orders Number 107, HQ, 3rd Advanced Individual Training Brigade, Fort Jackson, SC, dated 9 June 1970, awarding the applicant the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (Cal .45); and

   i.  Special Orders Number 106, HQ, 3rd Advanced Individual Training Brigade, Fort Jackson, SC, dated 8 June 1970, awarding the applicant the Sharpshooter Marksmanship Qualification Badge with Grenade Launcher Bar (M-79).

5.  The applicant’s records do not contain orders awarding him the Air Medal.

6.  Army Regulation 672-5-1 (Awards), in effect during Vietnam, provided that the Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended 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 were not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.

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

8.  Army Regulation 600-8-22 (Military Awards) sets forth Department of the Army criteria, policy and instructions concerning individual military awards, the Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  It provides:

	a.  The Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.  During the Vietnam 
War, U.S Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) 
provided guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  Nothing created an entitlement to the award.  There was no provision for making the award simply because an aircraft was struck by enemy fire.

	b.  A bronze service star is authorized to be worn on the appropriate service medal based on qualifying service for each campaign listed in Appendix B of this regulation.  The applicant participated in one campaign –Counteroffensive, Phase VII (1 July 1970 to 30 June 1971).

	c.  An oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Army Commendation Medal.

10.  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 the unit to which the applicant was assigned was cited for award of the Vietnam Gallantry Cross with Palm Unit Citation for the period 8 February 1971 to 30 April 1971 by Department of the Army General Orders Number 42, dated 1972.

11.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in 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 requests award of the Air Medal.  The applicant’s contention he flew more than 25 combat missions while an infantryman in Vietnam is not 
disputed.  Unfortunately, there are no orders in his records awarding him the Air Medal.  The applicant did not provide orders and attempts by the Board staff to locate orders was unsuccessful.  Therefore, there is no basis for granting the applicant's requested relief.

2.  While the available evidence is insufficient for awarding the applicant the Air Medal, this in no way affects his right to pursue his claim for the Air Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code 1130.

3.  The applicant had "excellent" conduct and efficiency ratings, no incidents of misconduct, and no disqualification by his commander.  Therefore, he is entitled to the first award of the Good Conduct Medal for the period from 16 March 1970 to 21 March 1972.

4.  The applicant was awarded two Army Commendation Medals, but his DD Form 214 only shows one award.  Therefore, his DD Form 214 should be corrected to show the Army Commendation Medal with first oak leaf cluster.

5.  The applicant was awarded various marksmanship badges.  Therefore, his DD Form 214 should be corrected to show the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60), Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Cal), and the Sharpshooter Marksmanship Qualification Badge with Grenade Launcher Bar (M-79).

6.  The applicant served in Vietnam during one campaign.  Therefore, his Vietnam Service Medal should reflect one bronze service star.

7.  The applicant’s unit was awarded the Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, this should unit award should be added to his DD Form 214.

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 item 24 of the applicant's DD Form 214 the Army Commendation Medal and the Vietnam Service Medal;

   b.  awarding the applicant the Good Conduct Medal (first award) for his service from 16 March 1970 to 21 March 1972; and

	c.  adding to item 24 of the applicant's DD Form 214 the Army Commendation Medal with first oak leaf cluster, Good Conduct Medal (first award), Vietnam Service Medal with one bronze service star, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60), Sharpshooter Marksmanship Qualification Badge with Pistol Bar
(.45 Cal), Sharpshooter Marksmanship Qualification Badge with Grenade Launcher Bar (M-79), and the Vietnam Gallantry Cross with Palm Unit Citation.

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 Air Medal.



      _______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)                                         AR20080019059



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ABCMR Record of Proceedings (cont)                                         AR20080019059



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