IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006054 


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 receipt of the Army Commendation Medal with First Oak Leaf Cluster and the Bronze Star Medal.  The applicant also requests correction of his DD Form 214 to show he served in the Republic of Vietnam for the period of 6 September 1969 through 5 September 1970.

2.  The applicant states, in effect, that he served in the Republic of Vietnam from 6 September 1969 through 5 September 1970, a period of 1 year.  He continues that item 22c (Foreign and/or Sea Service) of his DD Form 214 shows that he served in the Republic of Vietnam, but item 30 (Remarks) of the form only credits him with service in Vietnam from 6 September 1969 through 21 July 1970.  The applicant states that he no longer has the Bronze Star Medal certificate that he was provided, but he is certain that his records indicate receipt of the award.

3.  The applicant provides copies of his DD Form 214 and a certificate for the Army Commendation Medal with First Oak Leaf Cluster as documentary evidence in support of this request.

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 was inducted into the Army of the United States and entered active duty on 22 July 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 96C (Interrogator).  The highest rank he attained while serving on active duty was the rank of specialist five/pay grade E-5.  The applicant was released from active duty on 6 September 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  Headquarters, 14th Military Intelligence Battalion (Field Army), Fort Bragg, North Carolina, Special Orders Number 85, dated 13 May 1969, awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) effective 23 April 1969.

4.  Headquarters, 25th Infantry Division, General Orders Number 4048, dated 1 April 1970, awarded the applicant the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam during the period of 1 January 1970 to 28 February 1970.

5.  Headquarters, 25th Infantry Division, General Orders Number 8600, dated 3 August 1970, awarded the applicant the Army Commendation Medal with First Oak Leaf Cluster for meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam during the period of 1 May 1970 to 29 June 1970.  The applicant provides a copy of the certificate presented to him which commemorates his receipt of this award.

6.  Headquarters, 25th Infantry Division, letter, dated 6 July 1970, subject:  Unit Citation for Members of the 25th Infantry Division, was rendered by an Assistant Adjutant General.  This memorandum shows the applicant and other members of the 25th Infantry Division were awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period of 1 January 1966 to 21 January 1970.  The letter also shows that pencil entries had been made on the applicant's DA Form 20 (Enlisted Qualification Record) pending confirmation in Department of the Army general orders.

7.  Item 31 (Foreign Service) of the applicant's DA Form 20 shows he served a tour of duty in the Republic of Vietnam during the period of 6 September 1969 through 5 September 1970.

8.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he departed the Continental United States enroute to the Republic of Vietnam on 10 August 1969.  Item 38 also shows that during his tour of duty in the Republic of Vietnam, the applicant served in the 25th Military Intelligence Detachment of the 25th Infantry Division from 15 September 1969 through 31 August 1970.  He departed his unit enroute to the continental United States on 1 September 1970.  Item 38 also shows that the applicant received conduct and efficiency ratings of "excellent" for each of his duty assignments.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded or authorized to wear the National Defense Service Medal, the Army Commendation Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).  This form does not show award of either the Army Commendation Medal with First Oak Leaf Cluster or the Bronze Star Medal.

10.  The applicant's available record is void of any evidence and he has failed to provide any evidence that he was either recommended for or awarded the Bronze Star Medal.

11.  A Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders awarding the Bronze Star Medal to the applicant.

12.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended 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 were not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This pamphlet shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during the period of 31 March 1966 through 21 January 1970 by Department of the Army General Orders Number 51, dated 1971.

14.  Department of the Army Pamphlet 672-3 shows the applicant is entitled to wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  Appendix B of this regulation shows the campaigns for Vietnam.  During the applicant's tour of duty in the Republic of Vietnam he participated in four campaigns:  Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, DA Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement, or meritorious service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show receipt of the Army Commendation Medal with First Oak Leaf Cluster and the Bronze Star Medal.  The applicant also contends that his DD Form 214 should be corrected to show he served in the Republic of Vietnam for the period 6 September 1969 through 5 September 1970.

2.  General orders awarded the applicant the Army Commendation Medal with First Oak Leaf Cluster.  Therefore, he is entitled to have his records corrected to show this award.

3.  Special orders awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  Therefore, he is entitled to have his records corrected to show this badge.

4.  General orders show the applicant's unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during his tenure of assignment.  Therefore, he is entitled to have his records corrected to show this unit award.

5.  General orders show the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during his tenure of assignment.  Therefore, he is entitled to have his records corrected to show this unit award.

6.  Records show the applicant participated in four campaigns while serving in the Republic of Vietnam.  The record also shows the applicant was previously awarded the Vietnam Service Medal.  Therefore, he is entitled to award of four bronze service stars to be affixed to his previously-awarded Vietnam Service Medal and he is entitled to correction of his records to show this addition.

7.  The evidence shows the applicant completed a period of honorable service during which he received all "excellent" conduct and efficiency ratings and he had no convictions by a court-martial.  Additionally, there is no evidence that the applicant was disqualified by his chain of command from receiving the Army Good Conduct Medal.  Therefore, he is entitled to award of the Army Good Conduct Medal (First Award) for the period 22 July 1968 through 6 September 1970 and correction of his records to show this award.

8.  The applicant's record is void of any evidence, and he has failed to provide any evidence, that he was either recommended for or awarded the Bronze Star Medal.  As a result, the regulatory burden of proof necessary to support award of the Bronze Star Medal has not been satisfied in this case.

9.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement as pertains to award of the Bronze Star Medal.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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 him the Army Good Conduct Medal (First Award) for the period of 22 July 1968 through 6 September 1970; and

	b.  adding the following awards to item 24 of the applicant's DD Form 214:

		(1)  the Army Commendation Medal with First Oak Leaf Cluster;

		(2)  the Army Good Conduct Medal (First Award);

		(3)  the Marksman Marksmanship Qualification Badge with Rifle 
Bar (M-14);

		(4)  the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation;

		(5)  the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

		(6)  four bronze service stars to be affixed to his previously-awarded Vietnam Service Medal.

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 award of the Bronze Star Medal.



      __________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)                                         AR20090006054



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ABCMR Record of Proceedings (cont)                                         AR20090006054



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