IN THE CASE OF:	  	

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090003800 


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 of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show all awards to which he may be entitled.

2.  The applicant states, in effect, that his DD Form 214 does not reflect the Army Good Conduct Medal (AGCM), Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation, bronze service stars for his Vietnam Service Medal (VSM), and other possible unit awards.

3.  The applicant provides his DD Form 214 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's record shows he was inducted into the Army of the United States and entered active duty on 23 January 1970.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 17 September 1970 to 28 July 1971.  Item 38 (Record of Assignments) shows that he received no less than "excellent" conduct and efficiency ratings at each of his active duty assignments.  The list of awards contained in item 41 (Awards and Decorations) includes an entry which shows he qualified as expert with the M-60 machine gun.

4.  The applicant's military personnel records jacket contains Headquarters, 25th Infantry Division, General Orders Number 10518, dated 25 October 1970.  These orders announced the applicant's award of the Army Commendation Medal (ARCOM) for meritorious service in the RVN from 1 September to           19 October 1970.

5.  On 21 May 1971, while in the RVN, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for the following three offenses:  disobeying a lawful order given by his superior noncommissioned officer (NCO) to clean his weapon, being disrespectful in language toward his superior NCO by saying to him, "I'll clean my weapon whenever I want to," and disobeying a lawful order given by his superior commissioned officer.

6.  On 22 September 1971, the applicant was honorably released from active duty after completing a total of 1 year and 8 months of active military service.  The DD Form 214 he was issued at the time shows in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) that he earned the National Defense Service Medal (NDSM), VSM with one bronze service star, RVN Campaign Medal with Device (1960), Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 contains guidance on award of the VSM.  It 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.  Table B-1 contains a list of campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase VII and Consolidation I campaigns.

8.  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 Federal 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.

9.  Department of the Army General Order Number 8, dated 1974, authorized award of the RVN 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 claim of entitlement to the AGCM has been carefully considered and found to have merit.  The evidence of record confirms that although he received and accepted NJP on 17 May 1971, he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments and his record is void of a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award the applicant the first award of the AGCM for his qualifying period of honorable active duty service from 23 January 1970 through 22 September 1971 and to add this award to his record and separation document.

2.  The evidence of record includes orders that awarded the applicant the ARCOM for meritorious service in the RVN between September 1970 and October 1971.  He also earned the Expert Marksmanship Qualification Badge with M-60 Machine Gun Bar as evidenced on his DA Form 20.  Neither of these awards is currently reflected in item 24 of his DD Form 214 and should be added at this time.

3.  The evidence also shows that based on his RVN service and campaign participation, he is also entitled to the RVN Gallantry Cross with Palm Unit Citation and two bronze service stars to be worn with his already-awarded VSM.  Therefore, it would also be appropriate to add these awards to his record and 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 the applicant the AGCM for his initial qualifying period of honorable service from 23 January 1970 to 22 September 1971;

	b.  by amending item 24 of this DD Form 214 by deleting the VSM with one bronze service star and by adding the ARCOM, AGCM, VSM with two bronze service stars, RVN Gallantry Cross with Palm Unit Citation, and Expert Marksmanship Qualification Badge with Machine Gun Bar; and

	c.  providing the applicant a correction to his separation document 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)                                         AR20090003800



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ABCMR Record of Proceedings (cont)                                         AR20090003800



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