IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080019566 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show all of the awards and decorations that he is entitled to receive.

2.  The applicant essentially states, in effect, that the Department of Veterans Affairs (DVA) indicated in written correspondence that his military records do not show he was awarded any medals or ribbons showing participation in combat.  This is unjust, and he has been bothered by that statement.  He also states that he cannot believe that after spending time in Vietnam with eight straight months in the field a statement would be made that he did not participate in combat and that this statement really hurts.  He further contends that other Soldiers in his troop received medals and citations and that he cannot believe that he has not received the same credit they have, such as the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Vietnam Service Medal with four bronze service stars.     

3.  The applicant provides his DD Form 214; a partially cut-off copy of his 
DD Form 215 (Correction to DD Form 214); a third-party letter, dated 30 August 2007; and page 2 of a DVA Rating Decision which states, in part, that his military records do not show he was awarded any medals or ribbons showing participation in combat 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 military records show that he was inducted into the Army of the United States on 28 May 1969.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), and he was later awarded MOS 11E (Armor Crewman).  He was then transferred to Fort Hood, Texas for his initial permanent duty assignment.  On 1 May 1970, he departed for the Republic of Vietnam, and was initially assigned to Troop C, 1st Squadron, 11th Armored Cavalry Regiment.  On 18 February 1971, he was reassigned to Troop C, 3rd Squadron, 5th Cavalry Regiment, 9th Infantry Division.  He returned to the continental United States on 
8 April 1971, and he was honorably released from active duty on 9 April 1971.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Expert Marksmanship Qualification Badge with M-14 Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar, the Expert Marksmanship Qualification Badge with M-16 Rifle Bar, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, and the Army Commendation Medal.

3.  The applicant provided a third-party letter, dated 30 August 2007, from a fellow veteran who stated that he served with the applicant in Vietnam.  This person also essentially stated that there was some question as to the applicant being in combat, and that he and the applicant did serve in combat, and that if it was not combat, an explanation as to what it was should be provided.  This person further contends, in effect, that as for Purple Hearts, they were young, tough, and possibly a little naïve, and that there was always an understanding that the walking wounded stayed in the field, and that if you had a wound, cut, or burn that you could repair and go on, you did just that and did not bother to report it.  Additionally, he remembered the applicant having such a wound on his neck near his shoulder.  
4.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

5.  The applicant served 1 year, 10 months, and 12 days of continuous enlisted active duty service from 28 May 1969 to 9 April 1971, but his military records do not show that he was awarded the Army Good Conduct Medal.  All of his conduct and efficiency ratings were "excellent" or "unknown" throughout his active duty service, and there is no derogatory information in his military records that could be a disqualifying factor in awarding him the Army Good Conduct Medal.

6.  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 
11th Armored Cavalry Regiment, the regiment was cited for award of the Valorous Unit Award by Department of the Army General Orders Number 43, dated 1972, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 55, dated 1971.  

7.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he participated in the DA Sanctuary Counteroffensive campaign and the Vietnam Counteroffensive Phase VII campaign.

8.  The applicant's DD Form 214 does not show that he was awarded the Second Class Gunner Marksmanship Qualification Badge with Machinegun Bar, but he was awarded this marksmanship badge by Headquarters, U.S. Army Training Center (Infantry) and Fort Lewis, Fort Lewis, Washington Special Orders Number 254, dated 11 September 1969.  The Second Class Gunner Marksmanship Qualification Badge was subsequently renamed the Sharpshooter Marksmanship Qualification Badge. 

9.  The Vietnam Casualty List is a compilation of all casualties during the Vietnam War, the applicant is not listed as a casualty.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s active duty service, 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 except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying. 

12.  Paragraph 5-1 of Army Regulation 600-8-22 states that orders are not published for service medals, but they are annotated on records by the personnel officer.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show all of the awards and decorations that he is entitled to receive.

2.  The fact that the applicant provided correspondence from the DVA which essentially stated that his military records do not show that he was awarded any medals or ribbons showing participation in combat was considered, as was the applicant's disdain for this statement.  As the applicant's DD Form 214 already reflects both his inclusive dates of service in Vietnam as well as the award of the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, it appears that the DVA was merely trying to inform the applicant that his military records do not show any medals for valor, such as the Silver Star, the Bronze Star Medal with "V" (for Valor) Device, or the Army Commendation Medal with "V" Device, which would have clearly established that he actively engaged in combat.  While the applicant understandably misinterpreted the DVA’s statement to imply that he did not serve in a combat area, it is in fact a technically correct statement, as there are no orders awarding him any personal decorations for valor or for being wounded as a result of hostile action.  

3.  While the applicant did not specifically request that he be awarded the Purple Heart, the author of the third-party statement essentially stated that he remembered the applicant being wounded in the neck near his shoulder creates the impression that the Purple Heart is one of the medals that the applicant believes he may be entitled to receive.  However, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries received as a result of hostile action, and that this medical treatment was made a matter of official record.  In view of the foregoing, there is an insufficient basis for awarding the applicant the Purple Heart in this case.

4.  The applicant served 1 year, 10 months, and 12 days of continuous enlisted active duty service from 28 May 1969 to 9 April 1971, and all of his conduct and efficiency ratings were "excellent"  or "unknown" throughout his active duty service.  There is also no derogatory information in his military records that could be a disqualifying factor in awarding him the Army Good Conduct Medal.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 28 May 1969 to 9 April 1971, and correct his military records to show the award of the Army Good Conduct Medal.

5.  General orders awarded the Valorous Unit Award and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the 11th Armored Cavalry Regiment while the applicant was assigned to this regiment.  Therefore, he is entitled to award of the Valorous Unit Award and the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and correction of his military records to show these unit awards.

6.  The applicant participated in two campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show two bronze service stars to be added to his already-awarded Vietnam Service Medal.




7.  Special Orders awarded the applicant the Second Class Gunner Marksmanship Qualification Badge with Machinegun Bar, but it is not listed on his DD Form 214.  The Second Class Gunner Marksmanship Qualification Badge was later renamed the Sharpshooter Marksmanship Qualification Badge.  Therefore, he is entitled to correction of his military records to show the award of the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.

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 Army Good Conduct Medal for the period 28 May 1969 to 9 April 1971; and 

	b.  adding the following awards to the applicant’s DD Form 214:  the Army Good Conduct Medal, Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar and two bronze service stars to be affixed to his already awarded Vietnam Service Medal.

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 awarding him the Purple Heart or any additional awards that are not included above. 





3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable service in arms. 




      _______ _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)                                         AR20080019566



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ABCMR Record of Proceedings (cont)                                         AR20080019566



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