IN THE CASE OF:	  

		BOARD DATE:	  	  7 May 2009

		DOCKET NUMBER:  AR20080019290 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and other awards to which he is entitled.  

2.  The applicant states that he returned from Korea rather than Vietnam because he spent his last 6 months of duty in Korea.  He returned to Vietnam from Japan after he was wounded and was ordered to go to Korea.  

3.  The applicant provides a copy of his DD Form 214 and award certificates for the Purple Heart, the Bronze Star Medal with "V" Device, the Bronze Star Medal (First Oak Leaf Cluster), the Bronze Star Medal (Third Oak Leaf Cluster), the Army Commendation Medal, and the Air Medal 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 enlisted in the Regular Army on 26 April 1968 for a period of two years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was later reclassified into MOS 76S (auto repair parts specialist).  His highest grade held was specialist five, E-5.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam on 27 November 1968 with Company B, 4th Battalion, 39th Infantry, 9th Infantry Division.  

4.  Headquarters, 9th Infantry Division, General Orders Number 6110, dated 29 May 1969, show the applicant was awarded the Bronze Star Medal with "V" Device for action on 15 May 1969.  

5.  Headquarters, 9th Infantry Division, General Orders Number 6256, dated 2 June 1969, show the applicant was awarded the Purple Heart for wounds received in action on 17 May 1969.  

6.  His DA Form 20 shows he was medically evacuated from Vietnam to the 249th General Hospital, Camp Drake, Japan on 23 May 1969.  

7.  Headquarters, 9th Infantry Division, General Orders Number 6438, dated 6 June 1969, show the applicant was awarded the Bronze Star Medal (First Oak Leaf Cluster) for achievement on 15 May 1969.

8.  The applicant's DA Form 20 shows he was transferred from the 249th General Hospital, Camp Drake, Japan to Korea on 7 June 1969.

9.  The applicant provided a copy of an award certificate, dated 13 June 1969, which shows he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam during the period 20 December 1968 to 7 February 1969.

10.  Headquarters, 9th Infantry Division, General Orders Number 7157, dated 21 June 1969, show the applicant was awarded the Air Medal for meritorious achievement while participation in sustained aerial flight.  These orders do not indicate the dates action was performed.



11.  Headquarters, 9th Infantry Division, General Orders Number 7233, dated 23 June 1969, show the applicant was awarded the Air Medal (Second Oak Leaf Cluster) for meritorious achievement while participating in sustained aerial flight from 1 April 1969 to 25 May 1969.

12.  Headquarters, 9th Infantry Division, General Orders Number 9347, dated 8 July 1969, show the applicant was awarded the Bronze Star Medal (Third Oak Leaf Cluster) for meritorious service from July 1968 to June 1969.

13.  The applicant was released from active duty on 28 November 1969 in the rank of specialist five.  He completed 1 year, 7 months, and 3 days of active military service with no days of lost time.  His DA Form 20 shows he received conduct and efficiency ratings of "excellent" throughout his service.  There is no record of disciplinary actions.  

14.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device 1960, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Expert Marksmanship Qualification Badge with Rifle Bar, the Army Commendation Medal, the Armed Forces Expeditionary Medal, and one Overseas Service Bar.

15.  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 that, at the time of the applicant's assignment to the 4th Battalion, 39th Infantry, 9th Infantry Division, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army General Orders Number 59, dated 1969.

16.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 4th Battalion, 39th Infantry, 9th Infantry Division, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army General Orders Number 59, dated 1969.

17.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows the campaigns for Vietnam.  During the applicant’s tour in Vietnam he participated in the Vietnam Counteroffensive Phase VI and the Tet 69 Counteroffensive, 1969 campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

18.  Army Regulation 600-8-22 states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Bronze Star Medal.

19.  Army Regulation 600-8-22 provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

20.  Paragraph 1-19 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.  

21.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  General orders show the applicant was awarded the Purple Heart for wounds he received in action on 17 May 1969.  Therefore, the Purple Heart should be added to his DD Form 214.

2.  Available general orders show the applicant was awarded three awards of the Bronze Star Medal to include the Bronze Star Medal with "V" Device, the Bronze Star Medal (First Oak Leaf Cluster), and the Bronze Star Medal (Third Oak Leaf Cluster).  The Bronze Star Medal with "V" Device and the Bronze Star Medal (First Oak Leaf Cluster) were awarded for the same action on 15 May 1969.

3.  Based on the Military Awards regulation, only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

4.  Although there are no orders which indicate the applicant was awarded the Bronze Star Medal (Second Oak Leaf Cluster), any reasonable doubt should be resolved in the applicant's favor and it is therefore presumed that orders for the Bronze Star Medal (Second Oak Leaf Cluster) were issued, for a total of four awards of the Bronze Star Medal.  

5.  However, based upon the regulatory guidance that only one decoration will be awarded for the same act or achievement, and based upon the fact that it appears the applicant's Bronze Star Medal with "V" Device and Bronze Star Medal (First Oak Leaf Cluster) were both awarded for action on 15 May 1969, it would be appropriate to amend his DD Form 214 only insofar as to show award of the Bronze Star Medal with "V" Device (Second Oak Leaf Cluster) (i.e., three awards of the Bronze Star Medal).  

6.  General orders show the applicant was awarded three awards of the Air Medal.  Therefore, his DD Form 214 should be amended to show the Air Medal with Numeral "3."

7.  The applicant’s service records show he received conduct and efficiency ratings of "excellent" for a qualifying period from 26 April 1968 through 28 November 1969 and was promoted to specialist five during this period.  Therefore, he has met the regulatory requirements for the first award of the Army Good Conduct Medal.  

8.  The applicant was assigned to the 4th Battalion, 39th Infantry, 9th Infantry Division during a period it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, these foreign unit awards should be added to his DD Form 214.

9.  Record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of two bronze service stars to be affixed to the previously awarded Vietnam Service Medal.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 first award of the Army Good Conduct Medal for the period 26 April 1968 through 28 November 1969;

	b.  amending his DD Form 214 to add the Purple Heart, the Bronze Star Medal with "V" Device (Second Oak Leaf Cluster), the Air Medal with Numeral "3," the Army Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and two bronze service stars for wear on his already-awarded Vietnam Service Medal.




      _______ _   _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)                                         AR20080019290





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ABCMR Record of Proceedings (cont)                                         AR20080019290



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