IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080019503 


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 Soldier's Medal (SM) and the Army Commendation Medal (ARCOM) with second Oak Leaf Cluster (OLC).

2.  The applicant states these two awards were not listed on his DD Form 214.

3.  The applicant provides copies of his DD Form 214, SM certificate, SM orders, ARCOM with second OLC certificate, and ARCOM with second OLC orders in support of this 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 was inducted into the Army of the United States on 12 September 1968.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of light weapons infantryman.  He was promoted to pay grade E-5.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period from 26 February 1969 through 23 February 1970.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam he was assigned to Company D, 3d Battalion, 39th Infantry, 9th Infantry Division, performing duties as a rifleman.

4.  He was released from active duty with an honorable characterization of service and transferred to the U.S. Army Reserve Control Group (Annual Training) on 11 September 1970 after completing 2 years of creditable active service.

5.  The applicant provided a certificate for an ARCOM with second OLC and a photocopy of what appeared to be two sets of ARCOM orders (one order partially overlaying the other), which resulted in a document showing two different order numbers across the top of the page.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows the applicant was awarded the ARCOM with "V" Device based on General Orders Number 6116 and the ARCOM with first OLC based on General Orders Number 8608.

7.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, revealed:

	a.  Headquarters, 9th Infantry Division, General Orders Number 6116, dated 29 May 1969, awarding the applicant the first award of the ARCOM with "V" Device for heroism in connection with military operations against an armed hostile force in the Republic of Vietnam; and

	b.  Headquarters, 9th Infantry Division, General Orders Number 8608, dated 5 July 1969, awarding the applicant the ARCOM with second OLC for heroism during the period February 1969 to July 1969.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded, among other awards, the Vietnam Service Medal with one bronze service star and ARCOM with first OLC and "V" Device.

9.  The applicant provided Headquarters, II Field Force Vietnam, General Orders Number 775, dated 27 February 1970, showing award of the SM.

10.  The applicant's records are void of any orders or other documents that indicate he was ever recommended for or awarded the Army Good Conduct Medal (AGCM) by proper authority while serving on active duty.
 
11.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Army Regulation 672-5-1 (Military Awards), in effect at the time when the service member was discharged, required that throughout a qualifying period of service for award of the AGCM the enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  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.

13.  The applicant's DA Form 20 shows all "excellent" conduct and efficiency ratings and no adverse actions were shown in other available records.

14.  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 TET 69 Counteroffensive (23 February 1969-8 June 1969), Vietnam Summer-Fall 1969 (9 June 1969-31 October 1969), and Vietnam Winter-Spring 1970 (1 November 1969-30 April 1970) 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.

DISCUSSION AND CONCLUSIONS:

1.  General orders awarded the applicant the SM.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  The applicant's records show a certificate and general orders awarding the applicant the ARCOM with second OLC.  However, the preponderance of evidence indicates this was likely an administrative error since there is no evidence of a third award of the ARCOM and should have shown the ARCOM with first OLC.  Therefore, there is insufficient evidence on which to base to correction of his DD Form 214 to show the ARCOM with second OLC.
3.  The evidence of record confirms that the applicant served honorably during the period 12 September 1968 through 11 September 1970.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the AGCM based on completion of qualifying service ending with termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award.

4.  Record shows the applicant was awarded the Vietnam Service Medal with one bronze service star.  However, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of two additional bronze service stars to be affixed to his previously-awarded Vietnam Service Medal with one bronze service star.

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 AGCM (first award) for the period 12 September 1968 through 11 September 1970;

	b.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal with one bronze service star; and

	c.  adding to item 24 of his DD Form 214 the SM, AGCM, and the Vietnam Service Medal with three bronze service stars.



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 amending his DD Form 214 to show award of the ARCOM with second OLC with "V" Device.



      ___________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)                                         AR20080019503



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ABCMR Record of Proceedings (cont)                                         AR20080019503



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