IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090012959 


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 the following awards:  the Presidential Unit Citation, the Republic of Vietnam (RVN) Civil Actions Honor Medal First Class Unit Citation, the National Defense Service Medal, the Distinguished Service Medal, the Vietnam Service Medal, the Army Good Conduct Medal, the Army Service Rifle Award [correctly known as the Marksmanship Qualification Badge], and the Army Commendation Medal.

2.  The applicant states that he wants the following awards replaced:  the Presidential Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation, the National Defense Service Medal, the Distinguished Service Medal, the Vietnam Service Medal, the Army Good Conduct Medal, the Marksmanship Qualification Badge, and the Army Commendation Medal.

3.  The applicant submitted a Department of Veterans Affairs Statement in Support of Claim and 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.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal.  Therefore, it will not be discussed any further in this Record of Proceedings.

3.  The applicant's records show he was inducted into the Army of the United States on 20 September 1967.

4.  On 15 January 1968, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit on 2 January 1968 and remaining absent until 13 January 1968.

5.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 30 June 1968 to 13 May 1970.  He was assigned to Company B, 40th Signal Battalion.

6.  On 13 May 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed a total of 2 years, 7 months, and 13 days of net active service with 11 days of time lost.

7.  Item 24 of his DD Form 214 also shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the RVN Campaign Medal.

8.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he received "excellent" conduct and efficiency ratings in all of his active duty assignments.

9.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he received three overseas service bars, the RVN Campaign Medal with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

10.  Army Regulation 600-8-22 (Military Awards) provides that the Distinguished Service Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by exceptionally meritorious service to the government in a duty of great responsibility.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required

11.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualifying period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended 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.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Presidential Unit Citation is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.

14.  Army Regulation 600-8-200 provides, in pertinent part, that the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation is awarded by the Vietnamese Government as a unit award for meritorious service.

15.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

16.  Appendix B of Army Regulation 600-8-22 lists the campaigns for the Vietnam Conflict.  Based on the applicant's period of service in Vietnam, he participated in the Vietnam Counteroffensive Phase IV (2 April 1968 to 30 June 1968), the Vietnam Counteroffensive Phase V (1 July 1968 to 1 November 1968), the Vietnam Counteroffensive Phase VI (2 November 1968 to 22 February 1969), the Tet 69 Counteroffensive 1969 (23 February 1969 to 8 June 1969), the Vietnam Summer-Fall (9 June 1969-31 October 1969), the Vietnam Fall-Winter (1 November 1969-30 April 1970), and the DA Sanctuary Counteroffensive (1 May 1970-30 June 1970) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign and a silver service star will be awarded for every five bronze service stars.

17.  Army Regulation 600-8-22 contains guidance on the RVN Campaign Medal. 
It states, in pertinent part, that it is awarded for completion of 6 months of service in the RVN during the period between 1 March 1961 and 28 March 1973.  It further stipulates that it is awarded with the Device (1960).

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This pamphlet shows the unit to which the applicant was assigned was cited for award of the Meritorious Unit Commendation for the period 1 August 1967 to 31 December 1968 by Department of the Army General Orders Number 36, dated 1970.

19.  Department of the Army Pamphlet 672-3 also shows the unit to which the applicant was assigned was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 20 July 1965 to 28 March 1973 by Department of the Army General Orders Number 8, dated 1973.

20.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration or the upgrading of a decoration, either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms that the applicant served in the Army from 20 September 1967 to 13 May 1970.  There is also derogatory information in the applicant's record which shows that he absented himself from his unit without proper authority from 2 January 1968 to 12 January 1968.  Therefore, it would not be appropriate to award the applicant the Army Good Conduct Medal.

2.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was awarded the Distinguished Service Medal.  Therefore, he is not entitled to have his record corrected to show this award.

3.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was awarded the Army Commendation Medal.  Therefore, he is not entitled to have his record corrected to show this award.

4.  There is no evidence of record nor did the applicant submit any evidence that shows his unit was awarded the Presidential Unit Citation.  Therefore, he is not entitled to have his record corrected to show this award.

5.  There is no evidence of record nor did the applicant submit any evidence that shows his unit was awarded the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is not entitled to have his record corrected to show this award.

6.  While the available evidence is insufficient for awarding the applicant the Distinguished Service Medal and the Army Commendation Medal, this in no way affects the applicant's right to pursue his claim by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

7.  General orders show the 40th Signal Battalion was awarded the Meritorious Unit Commendation while the applicant was assigned to this unit.  Therefore, he is entitled to correction of his records to show this unit award

8.  General orders show the 40th Signal Battalion was awarded the RVN Gallantry Cross with Palm Unit Citation while the applicant was assigned to this unit.  Therefore, he is entitled to correction of his records to show this unit award.

9.  Records show the applicant participated in seven campaigns during his service in the RVN.  Therefore, he is eligible for award of one silver service star and two bronze service stars to be worn on his already-awarded Vietnam Service Medal.

10.  The evidence of record shows the applicant was awarded the RVN Campaign Medal with Device (1960).  Therefore, he is entitled to have his records corrected to show this award.

11.  The evidence of record shows the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his records to show this award.


BOARD VOTE:

_________  ________  _______ GRANT FULL RELIEF 

____x____  ____x____  ____x____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual be corrected by:

	a.  deleting the Vietnam Service Medal and the Vietnam Campaign Medal from item 24 of the applicant's DD Form 214; and

	b.  adding to item 24 of the applicant's DD Form 214 the Meritorious Unit Commendation, the Vietnam Service Medal with one silver service star and two bronze service stars, the RVN Gallantry Cross with Palm Unit Citation, the RVN Campaign Medal with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

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 Distinguished Service Medal, the Army Commendation Medal, the Army Good Conduct Medal, the Presidential Unit Citation, and the RVN Civil Action Honor Medal First Class 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)                                         AR20090012959



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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