IN THE CASE OF:	  

		BOARD DATE:	        23 July 2009

		DOCKET NUMBER:  AR20090003805 


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 that he be awarded the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal (RVNCM), and the Combat Infantryman Badge (CIB).

2.  The applicant states, in effect, that his DD Form 214 (Armed Forces of the United States Report of Separation or Discharge) reflects his service in Vietnam but the awards for this service are not reflected.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also states that he enclosed a statement from his commander.  However, no other additional documents were provided with 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 records, though somewhat incomplete, show the applicant was born on 15 January 1940 and he was inducted in Montgomery, Alabama on 18 October 1963.

3.  He completed his basic training, advanced individual training as an indirect fire crewman, and parachute training and was transferred to Okinawa for assignment to Company C, 1st Battalion, 503rd Infantry Regiment. 

4.  In May 1965, the applicant deployed with his unit to Vietnam as part of the 173rd Airborne Brigade, the first major U.S. Army ground unit to be deployed to Vietnam.

5.  He was advanced to the pay grade of E-4 on 24 April 1965 and on 11 October 1965 he was honorably released from active duty (REFRAD) at Oakland Army Base, California as an overseas returnee.  He had served 1 year, 11 months,  and 2 days of total active service and he was awarded the Armed Forces Expeditionary Medal, the Parachutist Badge and his marksmanship badges.  His DD Form 214 issued at the time of his REFRAD shows he had served 1 year, 
6 months, and 13 days of foreign service in the U.S. Army, Pacific Command (USARPAC).

6.  A review of the available records failed to show the applicant was awarded the CIB or that he actively engaged the enemy in combat while assigned to an infantry unit.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Armed Forces Expeditionary Medal is authorized for participants in military operations within a specific geographic area during a specified time period.  Paragraph 2-13d specifically provides that individuals qualified for the Armed Forces Expeditionary Medal for service in Vietnam from 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal.  Upon request, a unit personnel officer may award the Vietnam Service Medal in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual.  No person will be entitled to both awards for Vietnam Service.

8.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

9.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Campaign Medal.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

10.  Army Regulation 600-8-22 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 military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he meets the criteria for award of the CIB is not in doubt, there simply is no evidence in the available records to support his claim.  Therefore, in the absence of sufficient evidence to show that he engaged the enemy in combat while assigned as an infantryman in an infantry unit, there is no basis to award him the CIB at this time.

2.  The applicant's claim that he is eligible for award of the VSM has also been noted and appears to have some merit.  However, the applicant was awarded the AFEM for his service in Vietnam because the VSM had not been authorized at the time he arrived in Vietnam.  While the applicant is authorized to be awarded the VSM, he must first request that the award of the AFEM be removed from his records and replaced with the VSM.  Therefore, until the applicant makes a specific request to replace the award of the AFEM with the VSM, no effective relief can be granted on that portion of his request.

3.  The applicant's contention that he should be awarded the RVNCM has been noted and appears to lack merit.  In order to be awarded the RVNCM, individual had to serve in Vietnam for 6 months, unless evacuated prior to completing
6 months of service due to wounds resulting from hostile action.  The available records show the applicant served in Vietnam from May to October 1965.  Accordingly, it does not appear that he is entitled to award of the RVNCM.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20090003805



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ABCMR Record of Proceedings (cont)                                         AR20090003805



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