BOARD DATE:	 1 October 2009 

		DOCKET NUMBER:  AR20090005533 


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 records to show award of the Armed Forces Expeditionary Medal [for service in Vietnam], Bronze Star Medal with Oak Leaf Cluster and "V" Device, and any other awards which may have been omitted.   

2.  The applicant states, in effect, all of his awards are not included in his record and on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).   

3.  The applicant provides his DD Form 214 and a United States Military Assistance Command, Vietnam (MACV) letter, dated 4 October 1966, 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 that he initially enlisted in the Regular Army (RA) and entered active duty on 25 October 1963.  He was trained in and awarded military occupational specialty (MOS) 05B (Radio Operator).

3.  The applicant's DA Form 24 (Service Record) and DA Form 20 (Enlisted Qualification Record) show he served in the Republic of Vietnam (RVN) from 
23 November 1964 through 6 October 1966.  These records also show that during his RVN tour, he was assigned to the MACV (SD5891), performing duties in MOS 05B as a radio operator.  Item 38 (Record of Assignments) of his 
DA Form 20 shows he received "excellent" conduct and efficiency ratings at all of his active duty assignments.

4.  Section 9 (Medals, Decorations and Citations) of his DA Form 24 shows that he earned the Marksman Marksmanship Qualification Badge with Rifle Bar, AFEM-Vietnam, and the Combat Infantryman Badge (CIB).  Item 41 (Awards and Decorations) of his DA Form 20 shows he earned the Vietnam Service Medal (VSM), National Defense Service Medal (NDSM), CIB, RVN Campaign Medal (RVNCM), and Marksman Marksmanship Qualification Badge with Rifle Bar.  The AFEM is not included in the list of awards entered in Item 41 of the DA Form 20. 

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains a 
DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) that shows he accepted non-judicial punishment (NJP) for absenting himself from his place of duty without proper authority on 5 September 1964.  His MPRJ is void of any further  derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

6.  The applicant's MPRJ also contains a transmittal letter from the applicant's commander in the RVN to the commander of the transfer activity at Oakland, CA, dated 13 October 1966, which  forwarded MACV General Orders Number 1496 and 1528, dated 27 September and 1 October 1966, respectively.  These orders awarded the applicant the BSM for meritorious service from July 1965 to September 1966, and the BSM (First Oak Leaf Cluster) with "V" Device, for heroism in the RVN on 18 August 1966 and included accompanying citations and certificates.

7.  On 6 October 1966, the applicant was honorably released from active duty (REFRAD), in the rank/grade of specialist four (SP4)/E-4, after completing 2 years, 11 months, and 12 days of active military service.  Item 26 (Decorations, 
Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued upon his REFRAD shows he earned the NDSM, VSM, RVNCM, and CIB during his active duty tenure.  

8.  The applicant provides a letter from the MACV commander, dated 4 October 1966, which indicates that in addition to the AFEM the applicant was entitled to wear, he was being issued a MACV card for his service in the RVN.  

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-12 contains guidance on the AFEM and states, in pertinent part, that service members who earned the AFEM for service in Vietnam between 1 July 1958 and 3 July 1965 may elect to receive the VSM instead of the AFEM.  However, no service member may be issued both medals for service in Vietnam.

10.  Paragraph 2-13 of the awards regulation contains guidance on the VSM and states, in pertinent part, that individuals qualified for the AFEM for reason of service in Vietnam between 1 July 1958 and 3 July 1965 (inclusive) will remain qualified for that medal.  Upon request, any such individual may be awarded the VSM instead of the AFEM.  In such instances, the AFEM will be deleted from the list of authorized medals in personnel records.  No person will be entitled to both awards for Vietnam service.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the following campaigns:  Vietnam Advisory (15 March 1962 - 7 March 1965), Vietnam Defense (8 March 1965 - 24 December 1965), Vietnam Counteroffensive Phase I (25 December 1965 - 30 June 1966), and Vietnam Counteroffensive Phase II (1 July 1966 - 31 May 1967).

11.  Army Regulation 672-5-1 (Awards) provided the Army's awards policy in effect at the time of the applicant's REFRAD.  It stated, in pertinent part, that a normal qualifying period for award of the AGCM was 3 years; however, in the case of the first award issued at termination of Federal service, the qualifying period is more than 1 year.  It further stated that in order for a member to be eligible for the AGCM, he/she must have received all "excellent" conduct and efficiency ratings and must not have been convicted by a court-martial during the qualifying period.

12.  Department of the Army General Orders (DAGO) 8, dated 1974, announced award of the RVN Gallantry Cross with Palm Unit Citation for service in Vietnam to Headquarters, United States Military Assistance Command, Vietnam and its subordinate units during the period 8 February 1962 to 28 March 1973. 

13.  Army Regulation 600-8-22 states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Bronze Star Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the BSM (First Oak Leaf Cluster) with "V" Device should be added to the list of awards on his DD Form 214 was carefully considered and found to have merit.  His record contains orders that awarded him the BSM for meritorious service in the RVN from July 1965 through September 1966 and the BSM (First Oak Leaf Cluster) [signifying a 2nd award of the BSM] with "V" Device for heroism in the RVN on 18 August 1966.  Therefore, it would be appropriate to add the BSM (First Oak Leaf Cluster) with "V" Device to his record and DD Form 214 at this time.  

2.  The applicant's record also shows that he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Notwithstanding the applicant's acceptance of NJP for a minor offense, his MPRJ 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 AGCM for his qualifying period of honorable active duty service from 25 October 1963 through 6 October 1966 and to add this award to his record and DD Form 214 at this time.  

3.  The evidence of record also shows that based on his RVN service and campaign participation, the applicant is also eligible for the RVN Gallantry Cross with Palm Unit Citation and 4 bronze service stars for wear on his already-awarded VSM.  It further shows that he earned the Marksman Marksmanship Qualification Badge with Rifle Bar, which was omitted from the list of awards contained on his DD Form 214.  As a result, it would also be appropriate to add these awards to his record and DD Form 214 at this time.  

4.  The applicant's contention that the AFEM should be added to his record and DD Form 214 was also carefully considered.  However, by regulation, no service member may be issued both the AFEM and VSM for service in the RVN.  The regulation stipulates that individuals who qualified for the AFEM for service in the RVN between 1 July 1958 and 3 July 1965 remained qualified for that medal; however, upon request could be awarded the VSM instead of the AFEM.  In such instances, the AFEM was deleted from the list of authorized medals in personnel records.  No person will be entitled to both awards for RVN service.  


5.  In this case, it appears the applicant opted for the VSM at the time of his separation, as evidenced by the VSM entry on his DD Form 214 and the absence of the AFEM from his DA Form 20.  Therefore, absent a specific request from the applicant that the VSM with 4 bronze service stars be removed from his DD Form 214 and replaced with the AFEM-Vietnam, 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:

	a.  deleting from item 26 of his DD Form 214 the Vietnam Service Medal;

   b.  awarding him the Army Good Conduct Medal (first award) for his qualifying period of honorable active duty service from 23 October 1963 through 6 October 1966;
   
   c.  adding to item 26 of his DD Form 214 the Bronze Star Medal (First Oak Leaf Cluster) with "V" Device, Army Good Conduct Medal, Vietnam Service Medal with 4 bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Marksman Marksmanship Qualification Badge with Rifle Bar; and
   
   d.  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 Armed Forces Expeditionary Medal-Vietnam to his DD Form 214.



      __________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)                                         AR20090005533



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ABCMR Record of Proceedings (cont)                                         AR20090005533



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