IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100008980 


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 Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) to show military occupational specialty (MOS) 11B (Light Weapons Infantryman), the Combat Infantryman Badge, and all other authorized awards and medals.  

2.  The applicant states he desires that his DD Forms 214 accurately reflect his entire military career.  He is having difficulty getting his combat-related injuries and illnesses treated and his claim validated with the Department of Veterans Affairs (VA).   

3.  The applicant provides the following documents in support of his application:

	a.  DD Forms 214 with a separation date of 1 April 1971 and 1 June 1971;

	b.  Pages 1 and 3 of his DA Form 20 (Enlisted Qualification Record);

	c.  two DA Forms 8-275-2 (Clinical Record Cover Sheet) dated 1 December 1969 and 7 May 1970; and

	d.  a letter from the National Personnel Records Center written to the applicant, dated 25 January 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 into the Army of the United States on 20 March 1969 for a 2-year period.  He completed the training requirements and he was awarded primary MOS 11B by Special Orders Number 165, Headquarters, U.S. Army Training Center – Infantry, Fort Polk, LA, dated 11 July 1969.   

3.  The applicant's DA Form 20 shows he served in the Republic of Vietnam from on or about 18 August 1969 to 5 October 1969.  Item 38 (Records of Assignments) shows he was assigned to Company D, 1st Battalion, 46th Infantry, 196th Infantry Division in MOS 11B as a rifleman.  

4.  The applicant's personnel record contains a copy of a military medical clinical record showing he was wounded by hostile small arms fire on 29 September 1969 at 0130 hours at Landing Zone Professional in the Republic of Vietnam.  The applicant's injuries were a gunshot wound to his left hip and it fractured his left femur with no nerve or artery involvement.  He received medical treatment initially at the 91st Evacuation Hospital, then at the 249th General Hospital before he was transferred to the Army hospital at Fort Campbell, KY.

5.  The applicant's primary MOS 11B was withdrawn and primary MOS 71B (Clerk Typist) was awarded by Special Orders Number 79, Headquarters, U.S Army Hospital, Fort Campbell on 5 May 1970.  On 29 December 1970, he was awarded MOS 71H (Personnel Specialist) as his primary MOS.

6.  The applicant's military personnel record contains two DD Forms 214.  The first DD Form 214 shows he was honorably released from active duty on 1 April 1971 and he was transferred to the U.S. Army Reserve (USAR) to complete his military service obligation.  This DD Form 214 shows he served 2 years of active Federal service with 1 month and 18 days of foreign service in the U.S. Army Pacific Command geographic region.  This DD Form 214 shows the following entries:

   a.  item 23a (Specialty Number and Title) his MOS as 71H (Personnel Specialist);
   
   b.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal with 1960 Device
* Purple Heart

   c.  item 26a (Non-Pay Periods Time Lost) 13 days from 2 April to 14 April 1970; and

d.  item 30 (Remarks) shows the entry "18 AUG 69 – 5 OCT 69 – VIETNAM."

7.  On 2 April 1971, the applicant was voluntarily ordered to active duty.  On 1 June 1971, he was issued a second DD Form 214 that shows he was honorably released from active duty and transferred to the USAR Control Group (Annual Training) to complete his statutory military service obligation.  This
DD Form 214 shows he served 2 months of active Federal service for a combined total of 2 years and 2 months of active Federal service.  This DD Form 214 also shows the following entries:

   a.  item 23a (Specialty Number and Title) his MOS as 71H (Personnel Specialist);
   
   b.  item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the:

* National Defense Service Medal
* Vietnam Campaign Medal 
* Vietnam Service Medal with two campaign service stars
* Expert Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Machine Gun Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

c.  item 26a (Non-Pay Periods Time Lost) shows "NONE"; and
d.  item 30 (Remarks) shows the entry "VIETNAM SERVICE:  18 AUG 69 
5 DEC 69."

8.  There are no orders in the applicant's available military personnel record to show he was awarded the Combat Infantryman Badge.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not contain an entry for the Combat Infantryman Badge. 

9.  As evidence to support his application, the applicant provided a letter from the National Personnel Records Center that shows he was shipped the following awards based on his official records or documents he provided:

* Purple Heart 
* National Defense Service Medal
* Vietnam Service Medal with 2 bronze service stars
* Combat Infantryman Badge (1st Award)
* Republic of Vietnam Campaign Ribbon with 1960 Device
* Expert Marksmanship Qualification Badge with Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Machine Gun Bar

10.  References:

   a.  Army Regulation 600-8-22 (Military Awards) states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat;  
   
	b.  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 one campaign, the Vietnam Summer - Fall 1969 (9 June to 31 October 1969); 
   
	c.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet 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 24 August 1969 to 31 December 1969 by Department of the Army General Order Number 42, dated 1972; and 

   d.  Army Regulation 635-5 (Separation Documents), in effect on 23 November 1970, established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that in item 23a enter the MOS code number and title of the Soldier's primary MOS for the period shown.  In addition, item 24 should be prepared from the Soldier's DA Form 20 with all decorations, service medals, campaign credits, and badges awarded or authorized entered. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Combat Infantryman Badge because he served as an infantryman during combat operations in the Republic of Vietnam.  Additionally, he states his DD Form 214 should be corrected to show his MOS was MOS 11B, which would assist him in filing his VA claim.

2.  The applicant's request for award of the Combat Infantryman Badge has merit for his military personnel service record does show he was an infantryman in MOS 11B, that he served in an infantry unit, and that he was engaged in active combat operations with enemy forces based on award of the Purple Heart.  Therefore, the applicant should be awarded the Combat Infantryman Badge and his DD Forms 214 should be corrected to show this award.

3.  Records show the applicant was awarded the Vietnam Service Medal.  Records further show he participated in one campaign while serving in Vietnam.  Therefore, he is entitled to one bronze service star for wear on his already awarded Vietnam Service Medal.  Even though his 1 June 1971 DD Form 214 shows he was awarded two bronze service stars it will not be removed.

4.  General orders announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the unit to which the applicant was assigned during his combat tour in the Republic of Vietnam.  Therefore, the applicant is entitled to correction of his DD Form 214 to show this unit award.

5.  The applicant should be justifiably proud of his service to our Nation as an infantry during combat operations.  However, upon his release from active duty on 1 April 1971 and on 1 June 1971 the applicant's primary MOS was 71H (Personnel Specialist).  The evidence of record shows that primary MOS 11B was withdrawn by special orders on 5 May 1970 and the applicant was 
awarded MOS 71B.  On 29 December 1970, he was awarded MOS 71H as his primary MOS.  Therefore, the applicant's DD Forms 214 correctly show primary MOS 71H upon separation. 

6.  Based on the evidence of record, the applicant was awarded the Purple Heart and it was properly recorded on his DD Form 214 with a separation date of 1 April 1971.  However, in the preparation of his second DD Form 214 with a separation date of 1 June 1971, the Purple Heart was omitted.  The applicant is entitled to a correction of his DD Form 214 with a separation date of 1 June 1971 to show award of the Purple Heart.  

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 Combat Infantryman Badge; and
   
   b.  adding to item 24 of his DD Form 214 with a separation date of 1 June 1971 the Purple Heart, Combat Infantryman Badge, and Republic of Vietnam Gallantry Cross with Palm Unit Citation; and
   
   c.  providing the applicant 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 correcting his DD Forms 214 to show primary MOS 11B upon separation. 



      _______ _   _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)                                         AR20100008980



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ABCMR Record of Proceedings (cont)                                         AR20100008980



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