IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090005886 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank/grade as that of sergeant (SGT)/E-5 and award of the Silver Star, Army Good Conduct Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The applicant states that he should receive the Silver Star for his injuries in Vietnam and that he was told he would be promoted to SGT/E-5 but this did not happen due to his injuries at the time.

3.  The applicant provides a copy of his DD Form 214, dated 25 April 1969; a copy of his DD Form 215 (Correction to DD Form 214), dated 3 April 1998; and two undated statements from a former unit member, in support of his request.

4.  On 17 August 2009, by fax, the applicant requested further correction to his DD Form 214 to show the following awards:

	a.  Armed Forces Expeditionary Medal, Vietnam Service Medal, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Airborne Medal
(i.e., Parachutist Badge), Air Assault Medal (i.e., Air Assault Badge], Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon, Presidential Unit Citation, Army Valorous [sic - Valorous Unit Award], Meritorious Unit Commendation, Army Superior Unit Award, Joint Meritorious Unit Award, Vietnam Presidential Unit Citation, and campaign participation; 

	b.  Combat Service Commemorative Medal, Cold War Victory Commemorative Medal, Overseas Commemorative Medal, and TET Campaign Commemorative; and

	c.  Republic of Vietnam Wound Medal and the Overseas Commendation Medal. 

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 requested that the Vietnam Service Medal and the Presidential Unit Citation be added to his DD Form 214.  These two awards are already listed on the DD Form 215 that was provided by the applicant.  Therefore, the issue of the Vietnam Service Medal and the Presidential Unit Citation will not be discussed further in these Proceedings.

3.  With respect to the issuance of commemorative medals, most commemorative medals are not officially recognized.  Title 32, Code of Federal Regulations, Part 578 lists and discusses all official U.S. military decorations, medals, ribbons, and similar devices.  Commemorative medals are not listed as official.  Army Regulation 600-8-22 (Military Awards) provides that such medals may not be shown on the DD Form 214.  In addition, Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prohibits the wear of commemorative medals.  Some commemorative medals are authorized by the United States Congress and minted by the U.S. Mint.  However, award of such medals is not governed by the provisions of Army Regulation 600-8-22 and, as a result, may not be shown on a discharge document.  Therefore, the issue of the commemorative medals will not be discussed further in these Proceedings.


5.  With respect to the issue of the Republic of Vietnam Wound Medal and the Overseas Commendation Medal, these awards are not listed in the Department of Defense (DOD) Awards Manual nor are they governed by Army Regulation
600-8-22.  Therefore, the issue of the Republic of Vietnam Wound Medal and the Overseas Commendation Medal will not be discussed further in these Proceedings.

6.  The applicant's records show that the applicant enlisted in the Regular Army (RA) for a period of 3 years on 10 November 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewmember).  He was honorably discharged on
23 August 1967 for the purpose of immediate reenlistment and he executed a
3-year reenlistment on 24 August 1967.

7.  The applicant’s records further show that upon successful completion of basic combat training, he earned an advancement to the rank/grade of private (PV2)/
E-2, effective 10 March 1967 in accordance with Army Regulation 600-200 (Enlisted Personnel Management System).

8.  On 7 July 1967, Company B, 3rd Battalion, 51st Infantry, Germany, published unit orders announcing the applicant's advancement to private first class (PFC)/E-3, effective 7 July 1967.

9.  The applicant's records further show that he served in the Republic of Vietnam from on or about 18 October 1967 to on or about 19 July 1968.  He was assigned to Company D, 2nd Battalion, 5th Cavalry, 1st Cavalry Division.

10.  On 6 April 1968, Headquarters, 1st Cavalry Division, published Special Orders Number 32, announcing the applicant's appointment to the temporary rank/grade of specialist four (SP4)/E-4, effective 6 April 1968.

11.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he held was that of SP4/E-4.

12.  The applicant’s records show he was honorably released from active duty and placed on the retired list in his retired grade of E-4 on 25 April 1969 by reason of physical disability.  Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of the DD Form 214 he was issued show the entries "SP4 (P)" and "E-4," respectively.


13.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Bronze Star Medal with "V" Device, Air Medal, Army Commendation Medal, Purple Heart (1st Oak Leaf Cluster), National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and one overseas service bar. 

14.  On 3 April 1998, the applicant was issued a DD Form 215 that awarded him the Vietnam Service Medal with four bronze service stars, Presidential Unit Emblem [Citation], and Marksman Marksmanship Qualification Badge with Recoilless Rifle Bar.

15.  The applicant's records do not contain general orders awarding him the Silver Star, Army Good Conduct Medal, and/or the Army Commendation Medal.  Additionally, there are no special orders in his record that show he was promoted to SGT/E-5.

16.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Silver Star, Army Good Conduct Medal, or Army Commendation Medal pertaining to the applicant.  

17.  The applicant submitted the following statements in support of his request:

	a.  in an undated statement, a former member of the applicant's unit states that he saw the applicant and two other Soldiers come upon a bunker with enemy troops in it.  They started shooting/throwing hand grenades at them and continued the fight despite two of them being wounded until they killed all of the enemy troops.  He also adds that he and the platoon sergeant heard the company commander say he was recommending the applicant and the two Soldiers for the Silver Star;

	b.  in a second undated statement, the same former member states that he was present when the applicant was put in for the grade of E-5 by a sergeant and the company commander.

18.  Army Regulation 600-200, in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

19.  The applicant was awarded the Bronze Star Medal with "V" Device for heroism, not involving participation in aerial flight, in connection with military operations against a hostile force in the Republic of Vietnam.  General Orders Number 9974, Headquarters, 1st Cavalry Division, dated 10 August 1968, cited the following reason:

[Applicant] distinguished himself by exceptionally valorous action on 29 April 1968, while serving as a radio-telephone operator with Company D, 2nd Battalion, 5th Cavalry during a combat mission near Khe Sanh, Republic of Vietnam.  When his unit became heavily engaged with a large enemy force, [Applicant] was immediately wounded, but continued to expose himself to the hostile force as he maintained radio communications with the unit.  His actions contributed greatly to the successful completion of the unit's mission.

20.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

21.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

22.  Army Regulation 600-8-22 provides that the Army Commendation Medal 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.



23.  A review of the applicant's service record shows no derogatory information or a commander's disqualification that would render the applicant ineligible for the first award of the Army Good Conduct Medal.  Additionally, Item 38 of his DA Form 20 shows he received “excellent” conduct and efficiency ratings throughout his military service.

24.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

25.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 2nd Battalion, 5th Cavalry, was awarded the Republic of Vietnam Gallantry Cross with Gold Star Unit Citation for service from 9 August 1965 to 19 May 1969 based on Department of the Army General Orders Number 59, dated 1959.

26.  Department of the Army Pamphlet 672-3 does not show the 2nd Battalion, 5th Cavalry, was awarded the Valorous Unit Award, Meritorious Unit Commendation, Army Superior Unit Award, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, or the Joint Meritorious Unit Award, during the applicant’s assignment to this unit.

27.  Army Regulation 600-8-200 provides in pertinent part that the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation is awarded by the Vietnamese Government as a unit award for meritorious service.  

28.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Valorous Unit Award to units of the Armed Forces of the United States for extraordinary heroism in action against an armed enemy of the United States while engaged in military operations involving conflict with an opposing foreign force or while serving with friendly foreign forces engaged in an armed conflict in which the United States is not a belligerent party for actions occurring on or after 3 August 1963.  This award requires a lesser degree of gallantry, determination, and esprit de corps than required for the Presidential Unit Citation.  Nevertheless, the unit must have performed with marked distinction under difficult and hazardous conditions in accomplishing its mission so as to set it apart from and 
above other units participating in the same conflict.  The degree of heroism required is the same as that which would warrant award of the Silver Star to an individual.

29.  Army Regulation 600-8-22, in pertinent part, states that effective 1 March 1961 the Meritorious Unit Commendation was authorized for units and/or detachments of the Armed Forces of the United States for exceptionally meritorious conduct in the performance of outstanding services for at least six continuous months in support of military operations.  

30.  Army Regulation 600-8-22 provides, in pertinent part, that the Army Superior Unit Award was created in 1985 to recognize outstanding meritorious performance by a unit in completing a difficult and challenging mission under extraordinary circumstances during peacetime.  Circumstances may be deemed to be extraordinary when they do not represent the typical day-to-day circumstances under which the unit normally performs, or may reasonably be expected to perform, its peacetime mission.   

31.  DOD Instruction 1348.33 (Military Awards Program) provides, in pertinent part, that the Joint Meritorious Unit Award was authorized by the Secretary of Defense on 10 June 1981.  It is awarded to recognize joint units and activities for meritorious achievement or service, superior to that which is normally expected.  Qualifying achievements must be superior to that which is expected under conditions of combat with an armed enemy of the United States, a declared national emergency situation or extraordinary circumstances and should be operational in nature.  The Joint Meritorious Unit Award may not be awarded to any DOD activity which has received any other unit award for the same achievement or period of service.  

32.  The applicant’s records do not contain permanent orders awarding the applicant the Parachutist Badge and/or the Air Assault Badge.  Additionally, his records do not contain certificates of training showing completion of the Airborne or Air Assault Courses.

33.  Army Regulation 600-8-22 sets forth requirements for award of the Basic Parachutist Badge.  Award of the Basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School, or have participated in at least one combat parachute jump.

34.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of the Air Assault Badge.  Award of the Air Assault Badge requires that an individual must have satisfactorily completed an air assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction, or completed the standard Air Assault Course while assigned or attached to 101st Airborne Division (Air Assault) after
1 April 1974.

35.  Army Regulation 600-8-22 shows that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981 and the overseas service is not recognized with another U.S. service medal. 

36.  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.  Furthermore, the regulation states that service members who earned the Armed Forces Expeditionary Medal for service in Vietnam between 1 July 1958 and 3 July 1965 may elect to receive the Vietnam Service Medal instead of the Armed Forces Expeditionary Medal.  However, no service member may be issued both medals for service in Vietnam.  

37.  Army Regulation 600-8-22 shows that the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.

38.  Army Regulation 600-8-22 provides for award of the Vietnam Presidential Unit Citation and states in pertinent part, that this award was awarded to all personnel assigned to the Military Assistance Advisory Group, Indo-China, during August and September 1954.



39.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely 
fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his rank/grade as that of SGT/E-5 instead of SP4/E-4 and awards of the Silver Star Medal, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Armed Forces Expeditionary Medal, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Parachutist Badge, Air Assault Badge, Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon, Valorous Unit Award, Meritorious Unit Commendation, Army Superior Unit Award, Joint Meritorious Unit Award, and Vietnam Presidential Unit Citation. 

2.  With respect to the Army Good Conduct Medal, the evidence of record confirms that the applicant served honorably during the period 10 November 1966 to 25 April 1969.  He completed a combat tour in Vietnam, he was awarded multiple combat awards, and received “excellent” conduct and efficiency rating throughout his military service.  Lacking any derogatory information or a commander's disqualification on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Army Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award.

3.  General orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

4.  With respect to the Silver Star, the ABCMR acknowledges and applauds the applicant's valor and courage on 29 April 1968 under extremely hazardous conditions; he is truly an American hero.  His records show that he was clearly cited for heroism in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force in the Republic of Vietnam.  However, it appears a decision was made to award him the Bronze Star Medal with "V" Device.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Bronze Star Medal with "V" Device.  Almost 40 years have passed since the events of April 1968 and the ABCMR is not privy to the decision process used that time.

5.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star and/or the Army Commendation Medal.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to awarding him the Silver Star or the specific service and/or achievement that led to award of the Army Commendation Medal. 

6.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Silver Star and/or the Army Commendation Medal, this in no way affects the applicant’s right to pursue his claim for the Silver Star and/or the Army Commendation Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

7.  With respect to the applicant's rank/grade, the evidence of record shows that at the time of his retirement on 25 April 1969, the applicant held the rank/grade of SP4/E-4.  His record is void of any promotion orders to SGT/E-5 and item 33 of his DA Form 20 does not show an entry for a promotion and/or appointment to SGT/E-5.  Promotions of enlisted personnel to grade E-5 were announced in routine orders.  Notwithstanding the statement submitted by a former member of the applicant's unit, in the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant the requested relief.

8.  With respect to listing the Parachutist Badge and the Air Assault Badge, there is no evidence in the available records, and the applicant did not provide substantiating evidence, that shows he completed formal training of these courses.  Therefore, there is insufficient evidence to show these courses on the applicant’s DD Form 214.

9.  With respect to the Armed Forces Expeditionary Medal for his Vietnam service, the applicable regulation states that service members who earned the Armed Forces Expeditionary Medal for service in Vietnam between 1 July 1958 and 3 July 1965 may elect to receive the Vietnam Service Medal instead of the Armed Forces Expeditionary Medal.  However, no service member may be issued both medals for service in Vietnam.  The applicant was awarded the Vietnam Service Medal and associated bronze service stars for campaign participation for service in Vietnam after 3 July 1965.  Therefore, he is not authorized an award of the Armed Forces Expeditionary Medal.

10.  With respect to award of the Army Service Ribbon, this award was established on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, ARNG, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  However, there is no evidence that the applicant served on active duty after 1 August 1981.  Therefore, he does not meet the requirements for award of the Army Service Ribbon.

11.  With respect to award of the Overseas Service Ribbon, this award was established on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981 and the overseas service is not recognized with another U.S. service medal.  However, there is no evidence that the applicant served on active duty after 1 August 1981.  Therefore, he does not meet the requirements for award of the Overseas Service Ribbon.

12.  With respect to the Valorous Unit Award, Meritorious Unit Commendation, Army Superior Unit Award, Joint Meritorious Unit Award, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, there is no evidence that the applicant’s unit of assignment in Vietnam was awarded the requested awards or that the applicant was assigned to any other unit that was awarded the requested awards.  

13.  With respect to the Vietnam Presidential Unit Citation, there is no evidence that the applicant was assigned to the Military Assistance Advisory Group, Indo-China, during August and September 1954.  Therefore, he did not meet the criteria for this award.





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.  awarding the applicant the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 10 November 1966 to 25 April 1969; and

	b.  adding to item 24 of the applicant's DD form 214 the Army Good Conduct Medal (1st Award) and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 his rank/grade and award of the Silver Star, Armed Forces Expeditionary Medal, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Parachutist Badge, Air Assault Badge, Army Commendation Medal, Army Service Ribbon, Overseas Service Ribbon, Valorous Unit Award, Meritorious Unit Commendation, Army Superior Unit Award, Joint Meritorious Unit Award, or the Vietnam Presidential Unit Citation.



      ___________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)                                         AR20090005886



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ABCMR Record of Proceedings (cont)                                         AR20090005886



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