IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090011213 


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, award of the Combat Action Badge and the Presidential Unit Citation.

2.  The applicant states, in effect, that these awards are not included in his record.

3.  The applicant provides a copy of 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 that he was inducted into the Army of the United States and entered active duty on 9 October 1967.  He was trained in and awarded military occupational specialty (MOS) 13A (Basic Field Artillery).

3.  On 8 October 1969, the applicant was released from active duty with an honorable characterization of service.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years of creditable active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and the Army Good Conduct Medal.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) for the period 26 March 1968 through 24 March 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Battery C, 8th Battalion, 4th Field Artillery, performing duties in MOS 13A as a Cannoneer.

5.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the RVN.  This regulation shows the unit the applicant was assigned to while serving in the RVN was awarded the Meritorious Unit Commendation based on Department of the Army General Orders Number  9, dated 1970.  However, it does not show award of the Presidential Unit Citation to the unit the applicant was assigned to during his tenure in the RVN.

6.  On 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or are engaged by, the enemy.

7.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must not be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.
8.  Army Regulation 600-8-22 also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.   Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.

9.  Department of the Army Pamphlet 672-3 shows the Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973 based on Department of the Army General Orders Number 8, dated 1974.

10.  Army Regulation 600-8-22 contains the Army's awards policy.  Paragraph 
2-13 contains guidance on the Vietnam Service Medal 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 star is worn instead of five bronze service stars.  Table B-1 contains a list of campaigns and shows that during the applicant's assignment tenure in the RVN, participation credit was granted for the Tet Counteroffensive (30 January 1968-1 April 1968), Counteroffensive Phase IV (2 April 1968-30 June 1968), Counteroffensive Phase V (1 July 1968-1 November 1968), Counteroffensive Phase VI (2 November 1968-22 February 1969), and Tet 69 Counteroffensive (23 February 1969- 8 June 1969) campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the award of the Combat Action Badge was carefully considered.  However, retroactive award of the Combat Action Badge is not authorized prior to 18 September 2001; therefore, since the applicant was released from military service on 8 October 1969, he does not meet the criteria for this award.

2.  The evidence of record does not show that the applicant's unit was awarded the Presidential Unit Citation during his tenure in the RVN; however, it does show that general orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Meritorious Unit Commendation.  Therefore, it would be appropriate to correct his records to show these unit awards.

3.  Records show the applicant was awarded the Vietnam Service Medal and that he participated in five campaigns during his service in the RVN.  Therefore, it would be appropriate to correct his records to show a silver service star to be affixed to his previously-awarded Vietnam Service Medal.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  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.  adding to item 24 of his DD Form 214 the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation and

	b.  amending item 24 of his DD Form 214 to show a silver service star 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 Combat Action Badge and the 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)                                         AR20090011213



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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