IN THE CASE OF:	

		BOARD DATE:	6 October 2009  

		DOCKET NUMBER:  AR20090006800 


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, that his 25 February 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected by adding the Silver Star (SS), Air Medals (AMs), Combat Infantryman Badge (CIB) and any other earned awards and decorations.  

2.  The applicant states, in effect, he is requesting his DD Form 214 be corrected to reflect the CIB, AMs and SS as well as any other decorations he earned during his two combat tours in the Republic of Vietnam (RVN). 

3.  The applicant provides his DD Form 214 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 initially enlisted in the Regular Army (RA) and entered active duty on 15 January 1964.  He served for 2 years, 3 months, and 20 days until 4 May 1966, at which time he was honorably discharged for the purpose of immediate reenlistment.  On 5 May 1966, while serving in the RVN, he reenlisted in the RA for 3 years.   

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in
item 22 (Military Occupational Specialties), that he was awarded military occupational specialty (MOS) 63F (Recovery Specialist) on 8 July 1964, and was reclassified and awarded MOS 11B (Light Weapons Infantryman) on 29 July 1966.  Item 31 (Foreign Service) shows he completed two tours of duty in the RVN, the first from 11 September 1965 through 12 September 1966 and the second from 28 February 1968 through 20 February 1969.  

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his first RVN tour, he was assigned to Battery C, 6th Battalion, 
71st Artillery from 11 September 1965 through 6 May 1965, performing duties in MOS 63F; and to Company A, 2nd Battalion, 18th Infantry Regiment from 
10 May through 12 September 1966, performing duties in MOS 11B.  It also shows that during his second RVN tour, he was assigned to Company D,
2nd Battalion, 12th Cavalry Regiment, performing duties in MOS 11B as an automatic rifleman, from 8 March through 6 April 1968; and to Headquarters and Headquarters Company (HHC), 2nd Brigade, 1st Cavalry Division (Air Mobile) from 7 April 1968 through 20 February 1968, performing duties in MOS 11B as a rifleman and team leader.  It also shows the applicant received "excellent" conduct and efficiency ratings at all of his active duty assignments.  

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), Bronze Star Medal (BSM) with "V" (Valor) Device, BSM, AM, Aircraft Crewmember Badge (ACB),     2 Overseas Service Bars, and Expert Marksmanship Qualification Badge with Rifle Bar.  The SS and CIB are not included in the list of awards contained in item 41.  

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains DA Forms 2627 (Records of Proceedings Under Article 15, UCMJ) which show that while assigned to Fort Polk, Louisiana, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  5 January 1967, for speeding, operating a vehicle without a valid operator's permit, and failure to have a valid vehicle registration; 10 March 1967, for speeding; and 
2 May 1967, for exceeding pass limitations.  His record is void of any additional derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

7.  The applicant's MPRJ contains Headquarters, 1st Air Cavalry Division General Orders (GO) Number (#) 11439, dated 28 August 1968, which awarded the applicant the AM for the period March through July 1968; and Headquarters, 1st Air Cavalry Division GO # 774, dated 17 January 1969, which also awarded him the AM for the same period.  There are no additional AM orders or flight records on file in his MPRJ. 

8.  The applicant's MPRJ also contains Headquarters, 1st Infantry Division 
GO # 1829, dated 15 August 1966, which awarded him the BSM with "V" Device for his heroism in connection with military operations against a hostile force in the RVN on 2 July 1966.  The citation contained in the orders indicates that while conducting search and destroy operations near the Cambodian border, the applicant's unit was attacked by a numerically superior insurgent force and during this action, he displayed outstanding valor and exemplary courage while inflicting heavy casualties upon the Viet Cong.  The MPRJ also contains Headquarters, 1st Cavalry Division GO # 178, dated 4 January 1969, which awarded the applicant the BSM for meritorious service during the period February 1968 to February 1969.  

9.  On 25 February 1969, the applicant was honorably released from active duty (REFRAD), in the rank of staff sergeant.  The DD Form 214 he was issued at the time shows he earned the following awards:  NDSM, RVNCM, Expert Marksmanship Qualification Badge with Rifle Bar, 2 Overseas Service Bars, BSM with "V" Device, VSM, AM, and ACB.  

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.  A silver service star is issued in lieu of 5 bronze service stars to denote participation in 
5 campaigns.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment participation credit was granted for the following 7 campaigns:  Vietnam Defense Campaign, Vietnam Counteroffensive Phase 1, Vietnam Counteroffensive Phase II, TET Counteroffensive 1968, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, and Vietnam Counteroffensive Phase VI.  

11.  Chapter 8 of the awards regulation 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.  

12.  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.

13.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided local USARV awards policy.  It also established guidelines for award of the AM in the RVN.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Combat missions were divided into three categories:  Category I (air assault and equally dangerous missions); Category II (support rendered a friendly force immediately before, during or immediately following a combat operation); and Category III (support of friendly forces not connected with an immediate combat operation).  

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 units (6th Battalion, 71st Artillery Regiment; 2nd Battalion, 18th Infantry Regiment; 2nd Battalion, 12th Cavalry Regiment; and HHC, 2nd Brigade, 1st Cavalry Division) earned the Meritorious Unit Commendation (MUC), RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation.  

15.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prescribes the authorization for wear, composition, and classification of uniforms, and the occasions for wearing all personal (clothing bag issue), optional, and commonly worn organizational Army uniforms.  It also prescribes the awards, insignia, and accouterments authorized for wear on the uniform, and how these items are worn.  General information is also provided on the authorized material, design, and uniform quality control system.  Paragraph 28-28 contains guidance on Overseas Service Bars and states, in pertinent part, that one overseas service bar is authorized for each 6-month period of service in the RVN from 1 July 1958 through 28 March 1973.  The months of arrival and departure are counted as whole months.  
16.  Title 10 of the U.S. Code, section 1130 (10 USC 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.  

17.  The award request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the CIB and it should be added to his record and DD Form 214 was carefully considered and found to have merit.  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, and that he was personally present with the unit when it engaged in active ground combat with enemy forces.  In this case, the evidence of record shows the applicant was not awarded MOS 11B until 29 July 1966.  However, he was awarded the BSM with "V" Device for his heroism in connection with military operations against a hostile force while performing infantryman duties in the RVN just weeks earlier, on 2 July 1966.  It is a reasonable presumption that he continued to perform infantryman duties after he was awarded MOS 11B.  As a result, it would be appropriate to award the applicant the CIB and to add it to his record and DD Form 214 at this time.  

2.  The applicant's record also confirms that he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, except for his record of NJP for minor traffic and pass violations, his record is void of derogatory information or a unit commander that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying honorable active duty service from 15 January 1964 through 
14 January 1967 and to add this award to his record and DD Form 214.

3.  The evidence of record also shows that based on his service and campaign participation in the RVN, he is also eligible for the MUC, RVNGC with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, 1 silver service star and 2 bronze service stars with his VSM and 4 Overseas Service Bars.  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 his DD Form 214 should reflect AMs was also carefully considered.  However, the AM awarded the applicant for the period March through July 1968, is already included in item 24 of his DD Form 214.  Although there are two AM award orders in his file, they both awarded the AM for the same period and, therefore, are duplicate awards.  His record is void of any additional AM orders and of any flight records that would additional awards of the AM.  Therefore, there is insufficient evidence to support adding additional AMs to his DD Form 214.  

5.  The applicant’s record is also void of any orders or other documents that indicate he was ever recommended for or awarded the SS by proper authority while he was serving on active duty.  Therefore, absent a recommendation and supporting documentation, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  While there is insufficient documentation and evidence to award the applicant the SS, this in no way affects the applicant’s right to pursue his claim for award of the SS by submitting a request, with an award recommendation and supporting evidence, through a Member of Congress under the provisions of 10 USC 1130, as outlined paragraphs 15 and 16 of the Consideration of Evidence portion of this document. 

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 Combat Infantryman Badge;

	b.  awarding him the Army Good Conduct Medal for his qualifying honorable active duty service from 15 January 1964 through 14 January 1967; and 

	c.  amending item 24 of his 25 February 1969 DD Form 214 by deleting the current list of awards and replacing it with the following entry "National Defense Service Medal, Bronze Star Medal 1st Oak Leaf Cluster (2nd Award) with "V" Device, Air Medal, Army Good Conduct Medal, Vietnam Service Medal with 
1 silver service star and 2 bronze service stars, Republic of Vietnam Campaign Medal with 1960 Device, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Aircraft Crewmember Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and 4 Overseas Service Bars.

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 Silver Star and to additional awards of the Air 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)                                         AR20090006800



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ABCMR Record of Proceedings (cont)                                         AR20090006800


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