IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090002919 


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 the Purple Heart (PH) be added to item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that the PH he was awarded was not included in Item 24 of his DD Form 214.

3.  The applicant provides a DD Form 214 and PH award orders and certificate in support of his request.

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 record shows that he was inducted into the Army of the United States and entered active duty on 5 August 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  Item 31 (Foreign Service) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 7 January 1970 to 5 December 1970.  Item 38 (Record of Assignments) shows that he received "excellent" conduct and efficiency ratings at each of his active duty assignments.

4.  Item 40 (Wounds) of the applicant's DA Form 20 includes an entry showing he sustained a fragment wound to his face on 25 February 1970.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), Army Commendation Medal (ARCOM), RVN Campaign Medal with Device (1960), and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  The applicant's record is void of any derogatory information and/or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

6.  The applicant's record contains Headquarters, Second Advanced Individual Training Brigade, United States Army Training Center, Infantry, Fort Ord, California, Special Orders Number 231, dated 13 November 1969, which show he qualified as a marksman (also known as "second class") with the machinegun.

7.  The applicant's record also contains Headquarters, Americal Division, General Orders Number 2292, dated 11 March 1970, which awarded the applicant the PH for wounds received in connection with military operations against a hostile force in the RVN on 25 February 1970.  It also contains Headquarters, Americal Division, General Orders Number 7983, dated 4 July 1970, and General Orders Number 13700, dated 13 October 1970, which awarded the applicant the ARCOM for meritorious achievement during the period 1 February 1970 to 31 May 1970 and 1 June 1970 to 30 September 1970, respectively.

8.  On 4 August 1971, the applicant was honorably released from active duty after completing a total of 2 years of active military service.  Item 24 of the 

DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  NDSM, VSM with two bronze service stars, CIB, RVN Campaign Medal with Device (1960), ARCOM, Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar, and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and that treatment must have been made a matter of official record.

10.  Paragraph 2-13 of Army Regulation 600-8-22 contains guidance on award of the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.

11.  Table B-1 of Army Regulation 600-8-22 contains a list of campaigns and shows that during the applicant’s tenure of assignment in the RVN, credit was awarded for participating in the Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII campaigns.

12.  Paragraph 3-17 of Army Regulation 600-8-22 provides that the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  An oak leaf cluster is used to denote second and succeeding ARCOM awards.

13.  Chapter 4 of Army Regulation 600-8-22 prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM 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 military service, in which case, a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  Department of the Army General Orders Number 8, dated 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that item 24 of his DD Form 214 should be corrected by adding the PH he was awarded has been carefully considered and found to have merit.  The evidence of record confirms that the applicant was wounded in action in the RVN on 25 February 1970 and that he was awarded the PH as evidenced by an entry in item 40 of his DA Form 20 and by PH orders on file in his record.  Therefore, it would be appropriate add the PH to the list of awards contained in item 24 of his DD Form 214. 

2.  The evidence of record also confirms the applicant received two awards of the ARCOM for meritorious achievement during two separate periods as evidenced by ARCOM award orders on file in his record.  Therefore, it would be appropriate to correct his DD Form 214 to show he received the ARCOM with 1st oak leaf cluster (2nd award).

3.  The applicant's record also confirms that he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 5 August 1969 to 4 August 1971 and to add this award to his record and DD Form 214 at this time.

4.  The evidence of record also includes official orders showing the applicant qualified as a marksman with the M-60 machinegun.  Therefore, his record and DD Form 214 should be corrected to add the Machinegun Bar to his Marksman Marksmanship Qualification Badge.

5.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is eligible for the RVN Gallantry Cross with Palm Unit Citation and three bronze service stars with his already-awarded VSM. 
Therefore, it would also be appropriate to add these awards to DD Form 214 at this time.

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 Army Good Conduct Medal for his qualifying period of honorable active duty service from 5 August 1969 to 4 August 1970;

	b.  amending item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry:  "Purple Heart, Army Commendation Medal with 1st oak leaf cluster (2nd award), Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and Marksman Marksmanship Qualification Badge with Rifle (M-14) and Machinegun (M-60) Bars"; and

	c.  providing him a correction to his DD Form 214 that reflects these changes.



      __________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)                                         AR20090002919



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ABCMR Record of Proceedings (cont)                                         AR20090002919



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