BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100000067 


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 correction of his military records to show award of the Army Commendation Medal and the Army Good Conduct Medal.  He also requests correction of his records to show that his assignments in the Republic of Vietnam (RVN) were to Headquarters and Headquarters Battery (HHB), 2nd Battalion, 35th Artillery Regiment on 28 September 1967; that he was on temporary duty with the special forces from 10 to 25 December 1967; and he was assigned to B Battery, 2nd Battalion, 35th Artillery from June to September 1968.

2.  The applicant states that his DD Form 214 does not show award of the Army Commendation Medal or the Army Good Conduct Medal.

3.  The applicant provides a copy of a Department of the Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), DD Form 214 (Armed forces of the United States Report of Transfer or Discharge), and his DA Form 20 (Enlisted Qualification Record).

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.  On 23 February 1966, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 13E (Field Artillery Operations and Intelligence Assistant).

3.  On or about 24 October 1966, the applicant departed Fort Sill, OK, for duty in the Federal Republic of Germany.  He was assigned to C Battery, 1st Battalion, 94th Artillery Regiment on 4 November 1966.

4.  Special Orders Number 338, Headquarters, 4th Armored Division, dated
17 December 1966, awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  Special Orders Number 168, same headquarters, dated 17 June 1967, assigned the applicant to the Oakland Overseas Replacement Station, Oakland, CA, with an overseas arrival month of September 1967 to the RVN.

6.  Special Orders Number 268, Headquarters, U.S. Army Personnel Center, Oakland, dated 25 September 1967, assigned the applicant to the U.S. Army Vietnam (USARV) Transient Detachment, for further assignment to the Replacement Detachment, 90th Adjutant General Replacement Battalion, with an effective date of change of strength accountability (EDCSA) of 28 September 1967.

7.  Special Orders Number 201, Headquarters, USARV Transient Detachment, dated 27 September 1967, reassigned the applicant from the USARV Transient Detachment to HHB, 54th Field Artillery Group with an EDCSA of 4 October 1967.

8.  Special Orders Number 260, Headquarters, 54th Artillery Group, dated
28 September 1967, released the applicant from assignment to HHB, 54th Artillery Group (Unassigned) and further assigned him to B Battery, 2nd Battalion, 35th Artillery Regiment, with an EDCSA of 4 October 1967.

9.  Special Orders Number 7, same headquarters, dated 8 January 1968, reassigned the applicant from B Battery, 2nd Battalion, 35th Artillery Regiment to HHB of the same battalion, with an EDCSA of 8 January 1968.

10.  On 11 June 1968, the applicant was promoted to the rank/grade of specialist five (SP5)/E-5.

11.  Item 38 (Record of Assignments) of the applicant's DA Form 20 indicates he was assigned in the RVN as follows:

	a.  on 28 September 1967 to B Battery, 2nd Battalion, 35th Artillery Regiment;

	b.  on 8 January 1968 to HHB, 2nd Battalion, 35th Artillery Regiment; and

	c.  on 8 August 1968 to B Battery, 2nd Battalion, 35th Artillery Regiment.

12.  On 25 September 1968, he departed the RVN en route to the United States.

13.  Item 38 of the applicant's DA Form 20 further shows that he received all "excellent" conduct and efficiency ratings through his service, except for a period of 6 days while in training that is recorded as "unknown."

14.  On 26 September 1968, the applicant was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had attained the rank/grade of SP5/E-5, and he had completed 2 years, 7 months, and 4 days of creditable active duty service.

15.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal.

16.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Army Commendation Medal pertaining to the applicant.

17.  Army Regulation 600-8-22 (Military Awards) 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.

18.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to enlisted Soldiers who had completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends 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 are not disqualifying.

19.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following four campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July - 1 November 1968)

20.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the RVN.  This publication shows that the 2nd Battalion, 35th Artillery Regiment, during the time of the applicant's assignment, was cited for award of the RVN Civil Actions Honor Medal First Class Unit Citation for the period 23 June 1968 - 15 January 1971 by Department of the Army General Orders (DAGO) 51, dated in 1971.

21.  Department of the Army Pamphlet 672-3, paragraph 6d, states that DAGO 8, dated 1974, announced award of the RVN Gallantry Cross with Palm Unit Citation to Headquarters, USARV and its subordinate units during the period
20 July 1965 to 28 March 1973.

22.  Title 10, U.S. Code, section 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.

23.  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:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  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.

24.  The DA Form 20 is not posted and maintained after a Soldier has been released or separated from active duty, whether at the expiration of his/her term of service, retirement, or discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show award of the Army Commendation Medal and the Army Good Conduct Medal.  He also contends that his records should show that he was assigned to HHB, 2nd Battalion, 35th Artillery Regiment on 28 September 1967; he was on temporary duty with the special forces from 10 to 25 December 1967; and he was assigned to B Battery, 2nd Battalion, 35th Artillery from June to September 1968.

2.  A comparison of the applicant's assignment/reassignment orders contained in his military personnel records pertaining to his service in the RVN with the corresponding entries in item 38 of his DA Form 20 failed to show any discrepancies.  Furthermore, the records are void of any documentation or other information concerning any temporary duty with the special forces during his period of service in the RVN.  Therefore, there is no basis for changing the entries in item 38 of is DD Form 20 pertaining to his assignments in the RVN.

3.  Further, the DA Form 20 was not intended to be continued in force and maintained (continually posted) after a Soldier's separation from active duty.  Although the DA Form 20 is a permanent part of a Soldier's official records, the form was not intended for use outside, or beyond an individual's military service.  Therefore, there is no basis to correct this form.

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

5.  The applicant’s records clearly show that he distinguished himself in the performance of his military service as evidenced by his attaining the rank/grade of SP5/E-5 and achieving "excellent" conduct and efficiency ratings through his service.  His record is void of any adverse actions.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

6.  Records show that the applicant participated in four campaign periods during his service in the RVN.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal.

7.  The applicant's unit was cited in general orders for award of the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, his records should be corrected to show these foreign unit awards.

8.  Special Orders show that the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  Therefore, his records should be corrected to show this badge.

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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (first award) for the period from 23 February 1966 to 26 September 1968; and

	c.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

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 Army Commendation Medal or any changes to his DA Form 20 concerning his units and dates of assignments while serving in the Republic of Vietnam.



      ___________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)                                         AR20100000067



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ABCMR Record of Proceedings (cont)                                         AR20100000067



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