IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010326 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show two awards of the Purple Heart, three awards of the Army Commendation Medal and the "V" Device, and the Combat Infantryman Badge.

2.  The applicant states that he earned these awards and they should be on his DD Form 214.

3.  The applicant provides, in support of his application, copies of his DD Form 214; orders, citation, and certificates for awards of the Army Commendation Medal; and medical records showing he was wounded in the left thigh.

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.  Evidence of record and background information:

	a.  On 30 July 1968, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

	b.  On or about 6 December 1968, the applicant departed Fort Polk, Louisiana, for duty in the Republic of Vietnam.

	c.  On 18 January 1969, the applicant was assigned for duty as a rifleman with C Company, 3rd Battalion, 39th Infantry Regiment, 9th Infantry Division, in the Republic of Vietnam.

	d.  On or about 8 August 1969, the applicant returned to the United States for duty with the 299th Infantry Regiment in Hawaii.  In December 1969, he was reassigned to the 14th Infantry Regiment.

	e.  On 23 July 1970, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of specialist four, pay grade E-4, and had completed 
1 year, 11 months, and 24 days of creditable active duty service.

	f.  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 Campaign Medal, Bronze Star Medal with "V" Device, Vietnam Service Medal, Army Commendation Medal with "V" Device and one Oak Leaf Cluster, Purple Heart, and the Air Medal.

	g.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that his conduct and efficiency ratings were "excellent."  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal.

	h.  Item 40 (Wounds) of the applicant’s DA Form 20 shows that he received fragment wounds to his left leg on 28 February 1969.

3.  Available award orders for the applicant:

	a.  Special Orders Number 288, paragraph 239, Fort Polk, dated 
13 November 1968, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar;
	b.  Special Orders Number 288, paragraph 242, Fort Polk, dated
13 November 1968, Marksman Marksmanship Qualification Badge with Rifle 
[M-16] Bar;

	c.  Special Orders Number 79, 9th Infantry Division, dated 20 March 1969, Combat Infantryman Badge;

	d.  General Orders Number 4240, 9th Infantry Division, dated 9 April 1969, Army Commendation Medal with "V" Device;

	e.  General Orders Number 5041, 9th Infantry Division, dated 28 April 1969, Army Commendation Medal with First Oak Leaf Cluster (outstanding achievement);

	f.  General Orders Number 5383, 9th Infantry Division, dated 7 May 1969, Bronze Star Medal with "V" Device;

	g.  General Orders Number 5520, 9th Infantry Division, dated 13 May 1969, Purple Heart for wounds sustained on 11 March 1969;

	h.  General Orders Number 7061, 9th Infantry Division, dated 20 June 1969, Air Medal (meritorious achievement)

	i.  General Orders Number 8087, 9th Infantry Division, dated 1 July 1969, Army Commendation Medal with second Oak Leaf Cluster (meritorious service);

	j.  General Orders Number 8574, 9th Infantry Division, dated 5 July 1969, Army Commendation Medal with third Oak Leaf Cluster (outstanding achievement); and

	k.  General Orders Number 11353, 9th Infantry Division, dated 6 August 1969, Air Medal with second Oak Leaf Cluster (meritorious achievement);

4.  References and relevant information:

	a.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  An oak leaf cluster denotes award of second and succeeding awards of the Purple Heart.

	b.  Army Regulation 600-8-22 states Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

	c.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following three campaigns: Vietnam Counteroffensive, Phase VI; Tet 1969 Counteroffensive; and the Summer-Fall 1969.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

	d.  Army Regulation 600-200 (Enlisted Personnel Management System), as in effect at the time, provided instructions for the completion of the DA Form 20.  Paragraph 9-53 specified entry in Item 40 (Wounds) of a brief description of wounds or injuries received through hostile or enemy action requiring medical treatment and/or hospitalization.  The date wounded or injured was also to be entered.

	e.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 39th Infantry Regiment during the time of the applicant's assignment was cited in Department of the Army General Orders (DAGO) Number 59, dated in 1969, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and in DAGO Number 43, dated in 1970, for award of the Republic of Vietnam Civil Actions Honor Medal First class Unit Citation.

	f.  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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show two awards of the Purple Heart, three awards of the Army Commendation Medal and the "V" Device, and the Combat Infantryman Badge.

2.  An entry in item 40 of the applicant's DA Form 40 indicates that he was wounded as a result of enemy action on 28 February 1969 and received medical treatment.  Furthermore, general orders awarded the applicant the Purple Heart for wounds received as a result of enemy action on 11 March 1969.  Therefore, his DD Form 214 should be corrected to show award of the Purple Heart with one Oak Leaf Cluster.

3.  General orders indicate that the applicant was awarded a total of three Air Medals.  Therefore, his DD Form 214 should be corrected to show award of the Air Medal with numeral 3.

4.  General orders clearly show that the applicant received four Army Commendation Medals; one for heroism, one for meritorious service, and two for outstanding achievement.  Therefore, his DD Form 214 should be corrected to show his award of the Army Commendation Medal with "V" Device and 3 Oak Leaf Clusters.

5.  Special orders clearly show that the applicant was awarded the Combat Infantryman Badge.  Therefore, this badge should be shown on his DD Form 214.

6.  The applicant’s records clearly show that he distinguished himself in the performance of his military service as evidenced by his attaining the rank of specialist four, receiving two awards for valor, five awards for meritorious service and outstanding achievement, and achieving "excellent" conduct and efficiency ratings.  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.

7.  Records show that the applicant participated in three campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.



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

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

10.  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:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 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 Army Good Conduct Medal for the period
30 July 1968 to 23 July 1970;

	b.  deleting all entries from Item 24 of his DD Form 214; and









	c.  adding in Item 24 of his DD Form 214:  the Purple Heart with Oak Leaf Cluster, Air Medal with numeral three, Bronze Star Medal with "V" Device and Oak Leaf Cluster, Army Commendation Medal with "V" Device and three Oak Leaf Clusters, Army Good Conduct Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with 1960 Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.





      __________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)                                         AR20100010326





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ABCMR Record of Proceedings (cont)                                         AR20100010326



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