BOARD DATE:	6 July 2010  

		DOCKET NUMBER:  AR20090018111 


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 (Certificate of Release or Discharge from Active Duty) dated 25 September 1968 to show all of the awards that he is authorized as a result of his service in the Republic of Vietnam (RVN).  These awards include the Purple Heart, Bronze Star Medal, and Silver Star.  He also requests that his record be corrected to show he held the rank of sergeant (SGT/E-5) or staff sergeant (SSG/E-6).

2.  The applicant makes no additional statement.

3.  The applicant submitted in support of his application a copy of his DD Form 214, dated 25 September 1968.

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 enlisted in the Regular Army (RA) on 24 October 1966.
His DA Form 20 (Enlisted Qualification Record) shows the following entries:

* Item 31 (Foreign Service) 10 April 1967 to 9 April 1968, Vietnam
* Item 38 (Record of Assignments) he was assigned to Company C, 5th Battalion, 7th Cavalry Regiment, 1st Cavalry Division while in Vietnam
* Item 40 (Wounds) "is blank"
* Item 41 (Awards and Decorations) Vietnam Service Medal, National Defense Service Medal, Combat Infantryman Badge, Bronze Star Medal with "V" Device, and Army Commendation Medal 

3.  His DA Form 20, Item 33 (Appointments and Reductions), shows during the period of service covered by the DD Form 214 ending on 25 September 1968 he was advanced to private/pay grade E-2 on 24 February 1967, advanced to PFC/pay grade E-3 on 13 April 1967, advanced to SP4/pay grade E-4 on 
6 December 1967, demoted to PFC/E-3(P) on 13 April 1967, and advanced to SP4/E-4 on 6 December 1967.  There is no evidence that he served in a pay grade higher than E-4.

4.  The applicant's DD Form 214 dated 25 September 1968 shows he was honorably discharged on 25 September 1968 for immediate reenlistment in the rank of SP4 (T)/pay grade E-4.  Item 30 (Remarks) shows PFC/E-3 (P), date of appointment 13 April 1967.  His awards are listed as the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Vietnam Counter Offensive Phase II and III, Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's name is not listed on the Vietnam Casualty Roster.

6.  General Orders Number 1955, Headquarters, 1st Cavalry Division, dated 
31 March 1968, show the applicant was awarded the Army Commendation Medal for meritorious service from April 1967 to April 1968.

7.  General Orders Number 3934, Headquarters, 1st Cavalry Division, dated 
28 May 1968, shows the applicant was awarded the Bronze Star Medal with "V" Device for heroism on 12 February 1968.  

8.  On 12 November 1968 the applicant reenlisted and served until he was discharged on 26 September 1969.  Items 6a-d (grade, rate or rank) show he was discharged as a PVT/E-1, with a date of rank of 7 May 1969.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows he was awarded the National Defense Service Medal, Combat Infantryman Badge, Army Commendation Badge, Bronze Star Medal with "V" Device, and National Defense Service Medal.  

9.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows during the applicant's tour in Vietnam, he participated in the following four campaigns:

* Vietnam Counteroffensive, Phase II campaign
* Vietnam Counteroffensive, Phase III campaign
* Tet Counteroffensive campaign
* Vietnam Counteroffensive, Phase IV campaign

10.  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 Valorous Unit Award for the period 1 to 31 October 1967, by Department of the Army General Orders (DAGO) Number 39, dated 1970 and the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 
9 August 1965 to 19 May 1958, by DAGO Number 39, dated 1970.

11.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in 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.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  
Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.  

DISCUSSION AND CONCLUSIONS:

1.  According to the governing regulation the rank/grade that is held at the time of separation will be entered on the DD Form 214.  The available evidence shows the applicant was a SP4/E-4 at the time of his discharge on 12 September 1968 and there is no evidence that he served as a SGT or SSG.  Therefore, in the absence of evidence to the contrary no basis has been established to support the requested relief in this case.

2.  The evidence shows the applicant's latest DD Form 214 dated 12 November 1969 lists the following awards.  The applicant will be provided a copy of the      12 November 1969 DD Form 214.

* The Bronze Star Medal with "V" Device
* Army Commendation Medal
* Combat Infantryman Badge

3.  The evidence of record does not show and the applicant has not provided any evidence showing that he was wounded or injured as a result of hostile action, or that he was treated for such wounds.  The applicant is not listed on the Vietnam Casualty Roster.  Regrettably, in the absence of corroborating evidence there is no basis for granting the applicant's request for award of the Purple Heart.

4.  General orders show the 5th Battalion, 7th Cavalry Regiment was awarded the Valorous Unit Award and the RVN Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his DD 214 to show these awards.

5.  The available evidence shows the applicant participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars to be worn with his already-awarded VSM.

6.  Evidence of record show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Therefore, he is entitled to correction of his DD Form 214 to show this qualification badge.

7.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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 be corrected by:

   a.  deleting the Vietnam Service Medal, Vietnam Counter Offensive Phase II and III from his DD Form 214 dated 25 September 1968;

   b.  adding to item 24 of his DD Form 214 dated 25 September 1968 the Vietnam Service Medal with four bronze service stars, Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

   c.  providing him a document to show the above corrections.

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 Silver Star, the Bronze Star Medal with "V" Device, the Purple Heart and correction of his record to show he was a SGT or SSG.



      ___________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)                                         AR20090018111



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1