IN THE CASE OF:	  

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20090004012 


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 all awards to which he is entitled and that the Combat Infantryman Badge (CIB) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also requests correction of his record of assignments.

2.  The applicant states, in effect, that his record shows he served as a cannoneer in military occupational specialty (MOS) 13A (Field Artillery Basic) in the Republic of Vietnam (RVN).  However, he served as a Radio Telephone Operator (RTO) and infantryman in the forward observer unit in a light infantry brigade during his RVN tour.

3.  The applicant provides photographs and a National Personnel Records Center (NPRC) letter and accompanying documents 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 enlisted in the Regular Army and entered active duty on 3 February 1969.  His DA Form 20 (Enlisted Qualification Record) shows he completed MOS advanced individual training (AIT) at Fort Sill, Oklahoma, and was awarded MOS 13A on 13 June 1969.  He was awarded MOS 13E (Field Artillery Operations Specialist) on 8 January 1970 upon his promotion to specialist four (SP4), which is the highest rank he attained while serving on active duty.

3.  Item 31 (Foreign Service) of the applicant’s DA Form 20 shows he served in the RVN from 11 July 1969 through 6 September 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Battery and to B Battery, 1st Battalion, 14th Artillery, and that he performed duties in MOS 13A as a cannoneer and in MOS 13E as a liaison specialist.

4.  Item 38 of the applicant’s DA Form 20 shows he received "excellent" conduct and efficiency ratings at all of his active duty assignments and his official military personnel file (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  Item 41 (Awards and Decorations) of his DA Form 20 shows that during his active duty tenure he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal with Device (1960), Army Commendation Medal (ARCOM), Expert Marksmanship Qualification Badge with Rifle (M-14) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar.  Item 48 (Date of Audit) shows the applicant last audited his DA Form 20 on 7 May 1970.

5.  Orders on file in the applicant’s OMPF that were issued during his assignment to the RVN all show he was assigned to and serving in the 14th Artillery of the Americal Division Artillery.  There are no orders or other documents on file that show he ever served in an RTO or infantry position in an infantry unit while serving in the RVN.

6.  The applicant’s OMPF contains a copy of Headquarters, Americal Division, General Orders Number 5190, dated 30 May 1970, which awarded the applicant the ARCOM for meritorious achievement in connection with military operations against a hostile force in the RVN during the period January through April 1970.

7.  On 7 September 1970, the applicant was honorably released from active duty (REFRAD) in the rank of SP4 after completing a total of 1 year, 7 months, and 5 days of active military service.

8.  The DD Form 214 issued to the applicant upon his REFRAD on 7 September 1970 lists his MOS as 13E and shows he earned the following awards during his active duty tenure in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized):  NDSM, RVN Campaign Medal, VSM, two Overseas Service Bars, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar, and Expert Marksmanship Qualification Badge with Rifle (M-14) Bar.

9.  The applicant provides an NPRC letter, dated 9 February 2009, which authorized shipment of the following awards to the applicant:  ARCOM, NDSM, VSM with one bronze service star, RVN Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Rifle (M-14) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar.

10.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on 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 lists all authorized campaigns and shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, and Sanctuary Counteroffensive campaigns.

12.  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.

13.  Chapter 8 of Army Regulation 600-8-22 contains guidance on award of combat and special skill badges.  Paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental, or smaller size; and must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  Additionally, Appendix V of USARV 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.

14.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant's tenure of assignment in the RVN, his unit (1st Battalion, 14th Artillery) received the RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant received "excellent" conduct and efficiency ratings at all of his active duty assignments and that there is no derogatory information or unit commander disqualification on file that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 3 February 1969 through 7 September 1970 and to add this award to his record and DD Form 214.

2.  The evidence of record also confirms that the applicant earned the ARCOM which is not listed in item 24 of his DD Form 214.  It also shows that based on his RVN service and campaign participation, he is eligible for the RVN Gallantry Cross with Palm Unit Citation and three bronze service stars with his VSM.  Therefore, it would appropriate to correct his record and DD Form 214 accordingly.

3.  By regulation, in order to support award of the CIB, there must be evidence that the member held and served in an infantry MOS in a qualifying infantry unit of brigade, regimental, or smaller size and that he was personally present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory criteria.  The applicant’s DA Form 20 confirms that throughout his assignment to the RVN, he held and served in an artillery MOS with an artillery unit.  Further, all orders and other documents on file in his OMPF show he was assigned to the 14th Artillery throughout his RVN tour.  Therefore, absent any evidence corroborating his claim that he served as an RTO and infantryman in a light infantry brigade during his RVN tour or that he held an infantry MOS, there is an insufficient evidentiary basis to support granting this portion of the requested relief.


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 awarding him the first award of the Army Good Conduct Medal for his qualifying period of honorable active duty service from 3 February 1969 through 7 September 1970; by amending item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry "National Defense Service Medal, Army Commendation Medal, Army Good Conduct 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, Expert Marksmanship Qualification Badge with Rifle (M-14) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar"; and by providing him a correction to his DD Form 214 that includes these changes.

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 adding the Combat Infantryman Badge to his DD Form 214 or correcting his record of assignments.



      ___________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)                                         AR20090004012



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ABCMR Record of Proceedings (cont)                                         AR20090004012



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