IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010278 


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, reconsideration of the Board's prior denial of his request to change his grade and rank on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to sergeant, pay grade E-5.  He also requests that all of his awards and decorations be added to his DD Form 214.

2.  The applicant states that he was promoted to pay grade E-5 and it is an injustice for his DD Form 214 not to show that he held that rank.

3.  The applicant provides his DD Form 214; a letter dated 16 April 1972, Subject:  Promotion Merit Roster to Grade E-5 and E-6; a Bronze Star Medal (BSM) with "V" Device Citation which states the decoration was awarded "For distinguishing himself by exceptionally meritorious achievement in connection with ground operations against a hostile force in the Republic of Vietnam during the period 6 February 1972; a BSM Certificate which states that the BSM with "V" Device was awarded to the applicant "For meritorious achievement in ground operations against hostile forces"; General Orders Number 126 dated 9 March 1972 published by Headquarters US Army Support Command Cam Ranh Bay which awarded the applicant the BSM for Valor; and an Army Commendation Medal (ARCOM) order, certificate, and citation.

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 request to change his grade and rank on his DD Form 214 to sergeant, pay grade E-5 was denied by the Board on 3 May 2007.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  Since the applicant did not request reconsideration of the Board's denial of his request within a year, this portion of his request will not be discussed further in these proceedings.

3.  The applicant's military records show that he was inducted into the Army on 8 April 1971, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-4.

4.  He served in Vietnam from 6 September 1971 to 15 April 1972.  While in Vietnam he served as a rifleman in Company D, 2 Battalion, 506th Infantry from 10 to 25 October 1971; Company E, 2 Battalion, 506th Infantry from 26 October 1971 to 4 December 1971; Company B, 2nd Battalion, 327th Infantry from 5 December 1971 to 20 December 1971; and Company E, 2nd Battalion, 327th Infantry from 21 December 1971 to 14 April 1972.  His DA Form 20 (Enlisted Qualification Record) shows that his conduct and efficiency was always rated as "Excellent."

5.  The applicant was honorably released from active duty on 15 April 1972.  His DD Form 214 shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Vietnam Campaign Medal, and the Marksman Marksmanship Badge with Rifle Bar.

6.  The applicant's military records contain General Orders Number 916 dated 22 March 1972 which awarded the applicant the ARCOM.  Those orders were published by Headquarters, 3rd Brigade, 1st Cavalry Division.

7.  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 awarding the applicant a BSM.

8.  In the processing of this case the Board's staff contacted the Human Resources Command, Alexandria which stated that they did not have any historical records for orders published by Headquarters US Army Support Command Cam Ranh Bay.

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the pertinent identified campaign periods, for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Those periods during the applicant service in Vietnam are:  Consolidation I (1 July 1971 to 30 November 1971); Consolidation II (1 December 1971 to      29 March 1972); and Vietnam Cease-Fire (30 March 1972 to 28 January 1973).

10.  Department of the Army General Order Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

11.  Army Regulation 600-8-22 also provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than excellent was disqualifying.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond.  At that time, nonfavorable consideration was normally noted on the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided orders for his ARCOM and his military records also contain those orders.  As such, it would be appropriate to add this decoration to his DD Form 214.

2.  The applicant is also entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and three bronze service stars to be worn on his already authorized Vietnam Service Medal.
3.  In addition, the applicant's conduct and efficiency were always rated as "Excellent" and there is no record of any judicial or nonjudicial punishment taken against the applicant.  As such, it would appear that he is entitled to an Army Good Conduct Medal.

4.  However, there is insufficient evidence in which to add the BSM with "V" Device to the applicant's DD Form 214.  While the applicant's ARCOM orders were contained in his military records, the orders for the BSM with "V" Device were not in his records.  The applicant's ARCOM order, published on 22 March 1972, was issued by Headquarters, 3rd Brigade, 1st Cavalry Division.  His BSM with "V" Device order, published on 9 March 1972, was issued by Headquarters U.S. Army Support Command Cam Ranh Bay.  In addition, the BSM with "V" Device citation and certificate are both worded as if the decoration was for meritorious service, not valor.  Since the only evidence that the applicant was awarded the BSM with "V" Device is provided by him, and since the certificate and citation do not support a valorous award, it would be inappropriate to add this decoration to the applicant's DD Form 214.

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 for the period 8 April 1971 to 15 April 1972; and

	b.  by adding the Army Good Conduct Medal, the ARCOM, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and three bronze service stars to be worn on his already authorized Vietnam Service Medal to his DD Form 214.


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 BSM with "V" Device 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)                                         AR20090010278





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ABCMR Record of Proceedings (cont)                                         AR20090010278



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