IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009592 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Combat Infantryman Badge.

2.  The applicant states, in effect, that he served in the Republic of Vietnam from April 1967 to February 1968 with Company B and then with Company D of 1st Battalion, 35th Infantry, 4th Infantry Division.

3.  The applicant provides a copy of his DD Form 214 with a separation date of 24 October 1968 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 was inducted into the Army of the United States on 25 October 1966.   He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained was specialist (temporary)/pay grade E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), dated 31 May 1968, shows he served in the Republic of Vietnam from 12 April 1967 to 12 February 1968.  He was assigned to Company B and then to Company D within the 1st Battalion, 35th Infantry, 4th Infantry Division.

4.  Item 22 (Military Occupational Specialties) of the applicant's DA Form 20 shows he was awarded primary MOS 11B on 17 March 1967.  On 20 October 1967, MOS 11C (Infantry Individual Fire Crewman) was awarded as his primary MOS.  

5.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his tenure of service.  His military personnel records do not show any time lost or record of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), or any records of conviction by court-martial.  There is also no record of a commander's disqualification for award of the Army Good Conduct Medal.

6.  The applicant was honorably released from active duty on 24 October 1968 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.  He was issued a DD Form 214 that shows he served on active duty for 2 years and his creditable foreign service in the Republic of Vietnam was 10 months and 1 day. 

7.  Item 23a (Specialty Number and Title) of the applicant's DD Form 214 shows that his MOS was 11C upon separation from active duty.

8.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the following awards:  the National Defense Service Medal, the Vietnam Service Medal with bronze service star, and the Vietnam Campaign Medal with 1960 Device.  This DD Form 214 does not show award of the Combat Infantryman Badge. 

9.  Item 41 (Awards and Decorations) of his DA Form 20 shows the applicant was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with 1960 Device, one Overseas Service Bar, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar, and the First Class Gunner Qualification Badge M-60 Machine Gun.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer personnel who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  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.

11.  The applicant's records show that he is entitled to additional awards that he did not request and are not listed on his DD Form 214.

12.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the 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.  

13.  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.  Appendix B of this regulation shows the campaigns for Vietnam.  During the applicant’s tour in Vietnam, he participated in three campaigns:  the Vietnamese Counteroffensive Phase II (1 July 1966 to 31 May 1967), the Vietnam Counteroffensive, Phase III (1 June 1967 to 29 January 1968); and the TET Counteroffensive 1968 (30 January 1968 to 1 April 1968).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

14.  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 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.  In the recommendation process, the commander must certifying that more than 65 percent of the unit's Modified Table of Organization and Equipment (MTOE) personnel strength participated in the action. 

15.  Army Regulation 635-5 (Separation Documents) in effect at the time, provides that all available records will be used as a basis for the preparation of the DD Form 214WS (Worksheet), including DA Form 20, DA Form 66 (Officer Qualification Record), and orders.  

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows Department of the Army General Order (DAGO) Number 43, dated 1972 awarded the 1st Battalion, 35th Infantry the Valorous Unit Award for the period 22 April 1967 to 20 August 1967; DAGO Number 53, dated 1970 awarded the unit the Republic of Vietnam Gallantry Cross with Palm Device; and DAGO Number 48, dated 1971 awarded the unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was an infantryman with two infantry MOSs, 11B and 11C.  Based on the available evidence, the applicant served in an infantry unit that was awarded the Valorous Unit Award for actions against a hostile force during the period 22 April 1967 to 20 August 1967.  The regulatory requirement for a unit to receive the Valorous Unit Award required over 65 percent of the unit MTOE strength to be actively engaged in combat operations.  Therefore, the preponderance of the evidence supports awarding the applicant the Combat Infantryman Badge.

2.  The applicant's records show he received "excellent" conduct and efficiency ratings throughout his tenure of service and that he was fully qualified for reenlistment.  There is also no record of evidence showing a commander's disqualification.  Therefore, the applicant is entitled to the first award of the Army Good Conduct Medal based on completion of qualifying service from 25 October 1966 to 24 October 1968 ending with termination of his first period of qualifying Federal military service.   

3.  Records show the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to his previously-awarded Vietnam Service Medal.

4.  General orders awarded the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Device, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 1st Battalion, 35th Infantry during a period of time the applicant was assigned there.  Therefore, the applicant is entitled to have his record corrected to show these unit award.

5.  The evidence of records shows the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar, and the First Class Gunner Qualification Badge M-60 Machine Gun.  Therefore, he is entitled to have his record corrected to show these individual awards. 

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from his DD Form 214 the Vietnam Service Medal; 
   
   b.  awarding him the Combat Infantryman Badge and the first award of the Army Good Conduct Medal for his period of service from 25 October 1966 to 24 October 1968; and 

	c.  adding to his DD Form 214 the Combat Infantryman Badge, the Army Good Conduct Medal, the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Device, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Vietnam Service Medal with three bronze 
service stars, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar, and the First Class Gunner Qualification Badge M-60 Machine Gun.    



      _______ _   _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)                                         AR20090009592



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ABCMR Record of Proceedings (cont)                                         AR20090009592



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