IN THE CASE OF:	   

		BOARD DATE: 	     30 June 2009

		DOCKET NUMBER:  AR20090001280 


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, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 December 1968, to show award of the Vietnam Service Medal, with five bronze service stars; the Good Conduct Medal; the Combat Infantryman Badge; the Expert Infantryman Badge; and all other awards he may be entitled to.

2.  The applicant states, in effect, the awards he earned during his combat duty in Vietnam are not reflected on his DD Form 214.  He also states, in effect, his DD Form 214 should show the Vietnam Service Medal, with five bronze service stars, for his twenty-eight months of service in Vietnam.  He further states, in effect, he should have been awarded the Good Conduct Medal for his completion of 4 years, 7 months, and 8 days active service.  The Good Conduct Medal is awarded for "good conduct" during a three-year period.  He further states, in effect, that to be awarded the Combat Infantryman Badge, one must have served in a combat zone and performed duties with an infantry military occupational specialty (MOS).  He also states, in effect, that he served in an infantry MOS and performed duties as an infantryman during his service in Vietnam.  It should be added that they did come under fire periodically, several times during the course of a month, and for at least the first 8 months of duty.  He was assigned to a unit of the 9th Infantry Division during mid 1967 and that unit was mortared each night during the length of his assignment.



3.  The applicant also states that he attended the Expert Infantryman Course in October 1968 and completed the course in November 1968.  Due to the fact that he did not reenlist again orders were never written for the receipt of the Expert Infantryman Badge.  It was earned, but never received.  

4.  In support of his application, the applicant provides copies of his 1965 and 1968 DD Forms 214.  

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, in pay grade 
E-1, on 5 May 1964, for 3 years.  He completed his basic combat and advanced training and was awarded MOS 11B, Light Weapons Infantryman.  He served in Germany from 26 September 1964 to 28 December 1965.

3.  The applicant was honorably discharged on 12 December 1965, for the purpose of reenlistment for assignment to Vietnam.  Entries on his DD Form 214, Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), lists the following awards:  the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-14) and the Marksman Marksmanship Qualification Badge, with Rifle Bar (M-14 Modified).  His DD Form 214 does not show any additional awards.

4.  The applicant reenlisted on 13 December 1965 for 3 years.  He served in Vietnam from 25 February 1966 to 5 April 1968, with the 765th Security Platoon, for five campaigns.  During his service in Vietnam, he served as a Sergeant of the Guard in MOS 11B.


5.  On 5 January 1967, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for missing bed check on 2 January 1967.  His punishment included a forfeiture of $30.00 and 14 days restriction.  He did not appeal the punishment.

6.  The applicant was honorably released from active duty at the expiration of his term of service, in pay grade E-5, on 12 December 1968 and was transferred to the United States Army Reserve Control Group (Standby).

7.  Entries on the applicant's DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or 
Authorized) list the following awards:  the National Defense Service Medal; the Vietnam Service Medal, with two bronze service stars; the Republic of Vietnam Campaign Medal with Device (1960); and two Overseas Service Bars.

8.  Item 28 (Service Schools or Colleges, College Training Courses and/or Post-Graduate Courses Successfully Completed), of his DD Form 214, dated 12 December 1965, shows the entry "NONE/NA/NA."  Item 25 (Education and Training Completed), of his DD Form 214, dated 12 December 1968, shows the entry "4 years High School (1963)."

9.  Item 27 (Military Education) and Item 28 (Specialized Training) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show he completed any specialized training or course that prescribed proficiency tests for award of the Expert Infantryman Badge.

10.  A search of the Awards and Decorations Computer-Assisted Retrieval System was conducted.  This review failed to show that any orders were published awarding the applicant the Combat Infantryman Badge during his service in Vietnam.

11.  The applicant's record shows that he received ratings of "excellent" in conduct and efficiency.  There is no evidence the applicant was found disqualified for award of the Good Conduct Medal.

12.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  
13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, to all personnel assigned to the United States Army Vietnam.

14.  Army Regulation 600-8-22 further authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal including the Vietnam Service Medal.  A silver service star is worn instead of five bronze service stars.

15.  Army Regulation 600-8-22 also provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of U.S. Army Republic of Vietnam Regulation 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

16.  Army Regulation 600-8-22 further prescribes Army policy and procedures for awards, in pertinent part, paragraph 8-8 provides for award of the Expert Infantryman Badge.  Award of the Expert Infantryman Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size.  To be eligible for testing and award of the Expert Infantryman Badge, a Soldier must be in an active Army status and must have an infantry or special forces specialty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had "excellent" conduct and efficiency ratings throughout his service in the Army.  There is evidence of minor indiscipline (non-judicial punishment for missing bed check on one occasion) during his service; however, this minor indiscipline should not over-shadow his achievements while he served in Vietnam.  While in the Army, he attained the rank and pay grade of sergeant, E-5, and while in Vietnam he was assigned and received "excellent" conduct and efficiency ratings as the Sergeant of the Guard in a security company.  He is therefore entitled to award of the Good Conduct Medal (First Award) for the period 5 May 1964 to 4 May 1967 and to have it added to his DD Form 214.

2.  The evidence also confirms the applicant served in Vietnam for five campaigns and is entitled to one silver service star to be affixed to his already-awarded Vietnam Service Medal to denote his campaign credit.  It would also be appropriate to add this service star to his DD Form 214 with an ending date of 12 December 1968.

3.  General orders entitled the applicant’s unit to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure of assignment in Vietnam.  This unit award is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this unit award.

4.  To be entitled to award of the Combat Infantryman Badge, the evidence must show that the applicant held and served in an infantry MOS while assigned or attached to an infantry unit of brigade, regimental, or smaller size and he must have been personally present and served in active ground combat while assigned or attached to this infantry unit.

5.  The available evidence shows the applicant served in an infantry MOS; however, during his period of service in Vietnam he was assigned to a Security Platoon.  The available evidence also does not confirm that he was personally present and participated in active ground combat while assigned or attached to this security unit.  His records do not show he received any awards for valor or achievement that would give an indication he was exposed to active ground combat against the enemy.

6.  The applicant's contentions that he served in an infantry unit that came under fire and that he served in an infantry MOS during his period of service in Vietnam alone are insufficient for him to be awarded the Combat Infantryman Badge.  In all cases, the burden of proof rests with the applicant to submit substantiating proof of entitlement to an award in the absence of evidence in the record.  The available evidence is insufficient to authorize the applicant this award.

7.  There is no evidence of record to show the applicant met the established Army test requirements for award of the Expert Infantryman Badge.  Therefore, there is an insufficient basis upon which to approve this award and its addition to his DD Form 214, dated 12 December 1968.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.



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 the applicant the Good Conduct Medal (First Award) for the period 5 May 1964 to 4 May 1967; and

     b.  adding the Good Conduct Medal, the Republic of Vietnam Gallantry   Cross with Palm Unit Citation, and one silver service star to be affixed to his already- awarded Vietnam Service Medal to the list of awards shown on his DD Form 214 dated 12 December 1968.

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 Combat Infantryman Badge and the Expert Infantryman Badge and their addition to his DD Forms 214 dated 12 December 1965 and 12 December 1968.  




      _______ _   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)                                         AR20090001280



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ABCMR Record of Proceedings (cont)                                         AR20090001280



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