IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011701 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show awards of the Good Conduct Medal (AGCM), the Republic of Vietnam Cross of Gallantry, the Republic of Vietnam Civil Actions Honor Medal and that his DD Form 214 be corrected to show he was released from active duty (REFRAD) in the rank of sergeant (SGT)/E-5.

2.  The applicant states, in effect, that the above medals/ decorations were omitted from his records and his rank is incorrect.

3.  The applicant provides a copy of Special Orders Number 337 issued by Headquarters, 23rd Infantry Division on 3 December 1970, which promoted the applicant to the rank of SGT (E-5) effective 10 November 1970.

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 on 24 April 1969.  He completed his training as a light weapons infantryman and was transferred to Vietnam on 20 January 1970.  He was assigned to Company A, 3d Battalion, 21st Infantry Regiment and was advanced to the pay grade of E-4 on 8 April 1970.

3.  The orders provided by the applicant show he was promoted to the rank of SGT E-5 on 10 November 1970.  Additionally, his clearance papers show he cleared Vietnam in the rank of SGT.

4.  He departed Vietnam on 11 December 1970 and was transferred to Fort Lewis, Washington, where he was honorably REFRAD on 11 December 1970 in the rank of SP4 E-4 with a date of rank of 8 April 1970.  He had served 1 year, 7 months and 18 days of total active service.  His DD Form 214 and a DD Form 215 (Correction to DD Form 214) show he was awarded the National Defense Service Medal, the Army Commendation Medal with two oak leaf clusters and "V" device, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal with three bronze service stars, the Combat Infantryman Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Expert Marksmanship Badge with M14 rifle bar.

5.  A review of the applicant’s records failed to show he was awarded the AGCM.  However, his records do show that he received “excellent” conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the AGCM.  

6.  There is no evidence to show that his unit was ever awarded the Republic of Vietnam Cross of Gallantry or the Republic of Vietnam Civil Actions Honor Medal.  His unit was only awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he served with the unit, which is shown on his DD Form 215. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to reflect that he was REFRAD in the rank of SGT has been noted and appears to have merit.  He was promoted to the rank of SGT/E-5 on 10 November 1970 and his records should reflect this information.



2.  The applicant's contention that his records should be corrected to reflect the award of the AGCM has also been considered and found to have merit.  Although there is no evidence to show he was awarded the AGCM, there is sufficient evidence to show he was qualified for this award.

3.  The applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served.  Therefore, in the interest of justice, this error should be corrected and the applicant should be awarded the AGCM at this time.

4.  However, the applicant has failed to show through the evidence submitted with his application and the evidence of record that he is entitled to awards of the "Republic of Vietnam Cross of Gallantry" and the "Republic of Vietnam Civil Actions Honor Medal."  Therefore, in the absence of such evidence, there appears to be no basis to grant that portion of his request.

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 AGCM for the period 24 April 1969 to 11 December 1970; and

b.  amending his DD Form 214 to add the AGCM and to show that he was REFRAD in the rank of SGT/E-5 with a date of rank of 10 November 1970. 

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 "Republic of Vietnam Cross of Gallantry" and the "Republic of Vietnam Civil Actions Honor Medal" to his records.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20090011701



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ABCMR Record of Proceedings (cont)                                         AR20090011701



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