IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012005 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 February 1970 to show award of the Army Commendation Medal with first oak leaf cluster and the Marksman Marksmanship Qualification Badge with Grenade Bar.

2.  The applicant states that the omission of the Army Commendation Medal with first oak leaf cluster and the Marksman Marksmanship Qualification Badge with Grenade Bar from his DD Form 214 may have been the result of administrative oversights on the part of the personnel staff or department in charge of updating records and awards.

3.  The applicant provides copies of a Headquarters, 1st Infantry Division, General Orders Number 7345, dated 22 July 1969; the corresponding awards citation; and a letter from the National Personnel Records Center (NPRC), dated 20 April 2009, as documentary evidence in support of this 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 he entered active duty on 6 February 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4. The applicant was honorably released from active duty on 5 February 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Army Commendation Medal with first oak leaf cluster or the Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's record contains Headquarters, 1st Infantry Division, General Orders Number 5703, dated 20 June 1969, which show he was awarded the Army Commendation Medal for meritorious service in the Republic of Vietnam during the period July 1968 to July 1969.

5.  Item 29 (Qualification in Arms) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show a qualification entry for any type of grenade. Item 31 (Foreign Service) shows he served a tour of duty in the Republic of Vietnam during the period 7 July 1968 through 6 July 1969.

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that he was assigned to Company D, 2nd Battalion, 28th Infantry Regiment, 1st Infantry Division, during the period 17 July 1968 through 31 March 1969.  It further shows he was assigned to Headquarters and Headquarters Company of the same battalion during the period 1 April 1969 through 3 July 1969 during his tour of duty in the Republic of Vietnam.

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20, in pertinent part, shows he was awarded the Army Commendation Medal by the aforementioned General Orders Number 5703, dated 20 June 1969.  This form does not show award of either the Army Commendation Medal with first oak leaf 
cluster or the Marksman Marksmanship Qualification Badge with Grenade Bar.
8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, in pertinent part, shows he was awarded the Army Commendation Medal.  This form does not show award of either the Army Commendation Medal with first oak leaf cluster or the Marksman Marksmanship Qualification Badge with Grenade Bar.

9.  Item 30 (Remarks) of the applicant's DD Form 214 shows the inclusive dates of his service in the Republic of Vietnam as 7 July 1968 through 6 July 1969.

10.  The applicant provides Headquarters, 1st Infantry Division, General Orders Number 7345, dated 22 July 1969, which show he was awarded the Army Commendation Medal (first oak leaf cluster) for meritorious service in the Republic of Vietnam during the period July 1968 to July 1969.  The applicant also provides an award citation for this award.  Neither of these documents is filed in the applicant's Official Military Personnel File (OMPF).

11.  The applicant provides NPRC, Military Personnel Records, St. Louis, MO, letter, dated 20 April 2009, which was rendered by an Archives Technician in response to a request from the applicant.  This letter shows the NPRC authorized shipment of several awards and badges based on documents provided by the applicant and/or official documents, if available.  The Archives Technician advised the applicant to note that false representation of entitlement to any decoration, service medal, or badge of the Armed Forces of the United States could result in prosecution under the provisions of the Stolen Valor Act of 2005.  This letter, in pertinent part, indicates the applicant is authorized the Army Commendation Medal and the Marksman Marksmanship Badge with Grenade Bar.  However, there is no mention of the Army Commendation Medal with first oak leaf cluster.

12.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Army Commendation Medal.

13.  Paragraph 1-18 of Army Regulation 600-8-22 (Military Awards) states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

14.  Army Regulation 600-8-22, in pertinent part, states that the purpose of awarding badges is to provide for public recognition by tangible evidence of the attainment of a high degree of skill, proficiency, and excellence in tests and competition, as well as in the performance of duties.  Marksmanship badges and 
tabs are awarded to indicate the degree in which an individual has qualified [emphasis added] in a prescribed record course and an appropriate bar is furnished to denote each weapon with which he or she qualified.  Each bar will be attached to the basic badge that indicates the qualification last attained with 
the respective weapon.  Basic qualification badges are of three classes:  Expert, Sharpshooter, and Marksman.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show award of the Army Commendation Medal with first oak leaf cluster and the Marksman Marksmanship Qualification Badge with Grenade Bar was carefully considered; however found to lack merit.

2.  Headquarters, 1st Infantry Division, General Orders Number 5703, dated 20 June 1969, show he was awarded the Army Commendation Medal for meritorious service in the Republic of Vietnam during the period July 1968 to July 1969.  This award is correctly annotated in item 24 of his DD Form 214.

3.  The applicant provides General Orders Number 7345, dated 22 July 1969, and an accompanying award citation, published by the same headquarters, which indicate he was awarded the Army Commendation Medal with first oak leaf cluster for meritorious service in the Republic of Vietnam during the period July 1968 to July 1969.  These documents were rendered for the exact same reason and period of time previously recognized on 20 June 1969 by the award of the Army Commendation Medal by General Orders Number 5703.

4.  Army Regulation 600-8-22 provides that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.  It appears the applicant was erroneously awarded the Army Commendation Medal with first oak leaf cluster.  The fact that neither of the documents for the erroneous award is filed in the applicant's OMPF appears to indicate they were revoked and removed once the duplication error was discovered.  In view of the foregoing, the applicant is not entitled to correction of his record to show receipt of the Army Commendation Medal with first oak leaf cluster.

5.  With respect to the Marksman Marksmanship Qualification Badge with Grenade Bar, there are no orders in the applicant's records that show he was awarded the Marksman Marksmanship Qualification Badge with Grenade Bar.  Additionally, the applicant’s record is devoid of any documentary evidence and he has failed to provide any evidence that he qualified as a marksman with any type of grenade instrument during a prescribed record fire course.

6.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090012005



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ABCMR Record of Proceedings (cont)                                         AR20090012005



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