IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010912 


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 his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected as follows:

* Removal of 2 days of time lost
* Award of the Army Commendation Medal (ARCOM)
* Award of the Army Good Conduct Medal (AGCM)
* Addition of the Aviation Badge
* Award of the Senior Parachutist Badge
* Addition of the First Class Badge with M-60 Machine Gun Bar
* Addition of the leadership course, helicopter repair school, Army aircraft and principles of flight course, and a Soldier of the Month letter and certificate to his DD Form 214  

2.  The applicant states his staff sergeant authorized him to accompany him to Saigon in the Republic of Vietnam (RVN).  Upon his return, his commander threatened to court-martial him if he did not accept 30 days of restriction.  He claims he was told the slate would be clean after he completed the restriction; however, his record and DD Form 214 shows he was absent without leave (AWOL) for two days.  This resulted in his receiving an “unsatisfactory” rating in his record.  He claims he was to receive the AGCM but it was held back because of the AWOL.  



3.  The applicant also states he was to receive the ARCOM when he received his Air Medal (AM) with “V” (Valor) Device which also did not happen.  He claims he was originally recommended for the Distinguished Flying Cross (DFC) but it was downgraded to the AM with “V” Device because he was not an officer.  He claims two officers on the mission received the DFC and two crewmembers received the AM with “V” Device.  He also states while at Fort Bragg, North Carolina, he accumulated over 35 jumps and participated in the Labor Leap (6 jumps) in one day but was never awarded the Senior Parachutist Badge.  He also states he was awarded the First Class Badge with M-60 Machine Gun Bar but it was never added to his DD Form 214.  

4.  The applicant also contends he completed the leadership course, helicopter repair school, Army aircraft and principles of flight course, and received a letter and certificate for being Soldier of the Month and an honorary airborne recruiter  but these were not included on his DD Form 214.  

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

* DA Form 1577 (Authorization for Issuance of Awards)
* Helicopter Repair Course Diploma
* Junior Leadership Course Completion Certificate
* Honorary Airborne Recruiter Certificate
* Soldier of the Month Letter of Commendation
* Vietnam Combat Certificate
* Service in the Armed Forces of the United States Certificate
* First Class Badge with M-60 Machine Gun Bar Orders
* Aviation 3 Sub-Course Completion Certificate Letter

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 record shows the applicant initially enlisted in the Regular Army on        29 May 1969.  He was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 17 October 1969.  He served for 9 months and 29 days until 27 March 1970, at which time he was honorably discharged for the purpose of immediate reenlistment.  

3.  The DD Form 214 issued to the applicant on 27 March 1970 shows he earned the National Defense Service Medal (NDSM), Parachutist Badge, Vietnam Service Medal (VSM) and Combat Infantryman Badge (CIB) during this period of active duty service.  It also shows he completed the Basic Airborne Course in item 25 (Education and Training) of the DD Form 214.  

4.  On 28 March 1970, the applicant reenlisted for 3 years and continued serving on active duty.  His record shows he was awarded primary MOS 67N (UH-1 Helicopter Repairman) on 22 March 1971.  His DA Form 20 (Enlisted Qualification Record) shows, in item 27 (Military Education), that he completed the Light Weapons Infantryman (MOS 11B) course and Basic Airborne course in 1969.  Item 31 (Foreign Service) shows he served in the RVN from 12 December 1969 through 14 November 1970.  Item 33 (Appointments and Reductions) shows he was promoted to specialist five/E-5 (SP5/E-5) on 4 October 1971 and this is the highest grade he attained while serving on active duty.

5.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows that during his RVN tour he was assigned to Company A, 3rd Battalion, 503rd Infantry Regiment, performing duties in MOS 11B, from 15 December 1969 through      19 May 1970; and to the 162nd Aviation Company, performing duties as a helicopter mechanic, from 20 May through 15 November 1970.  Item 38 further shows he received an “unsatisfactory” conduct and “good” efficiency rating during this assignment. 

6.  Item 41 (Awards and Decorations) of his DA Form 20 shows the applicant earned the following awards during his active duty tenure:

* NDSM
* Parachutist Badge
* VSM
* CIB
* RVN Campaign Medal (RVNCM)
* AM 2nd Award with “V” Device
* Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar
* Marksman Marksmanship Qualification Badge with Automatic Rifle (M-16) Bar
7.  Item 44 (Time Lost) of his DA Form 20 contains an entry showing the applicant was AWOL from 7 to 8 November 1970.  Item 48 (Date of Audit) shows the applicant last audited his DA Form 20 on 5 January 1972.  

8.  The applicant’s record shows that on 17 March 1972 the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his command sergeant major on 10 March 1972 and for failing to go to his appointed place of duty at the time prescribed on 15 March 1972.  

9.  The applicant’s record is void of any documents or orders showing he was ever recommended for the DFC or that he was recommended for or awarded the ARCOM.  It is also void of a jump record, flight record, or other documents showing he was ever recommended for or awarded the Senior Parachutist Badge or Aviation Badge.  

10.  On 19 December 1972, the applicant was honorably released from active duty after completing a total of 3 years, 6 months and 19 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:

* NDSM
* Parachutist Badge
* VSM
* CIB
* RVNCM
* AM
* AM with “V” Device

11.  Item 25 (Education and Training) of his DD Form 214 shows the applicant completed the following courses and training during his active duty tenure:

* CBR Training
* Basic Training
* Code of Conduct 
* High School GED
* Geneva Convention
* Basic Airborne
* Benefits of an Honorable Discharge
* Military Justice

12.  Item 26a (Non-Pay Periods Time Lost) of the DD Form 214 shows the applicant accrued 2 days of time lost due to AWOL during the period 7 to            8 November 1970.  

13.  The applicant provides a certificate, dated 22 March 1971, issued by the United States Army Transportation School, Fort Eustis, Virginia which shows he completed the UH-1 Helicopter Repair Course (MOS 67N).  He also provides a certificate, dated 28 April 1972, issued by the 82nd Airborne Division, Fort Bragg which shows he completed the 1st Brigade Junior Leadership Course.  He further provides Headquarters, 3rd AIT Brigade, Fort Gordon, Georgia, Special Orders Number 201, dated 19 September 1969, which awarded him the First Class Badge with M-60 Machinegun Bar based on his qualification with the M-60 Machine Gun.  

14.  The applicant also provides an Honorary Airborne Recruiter certificate, dated 26 September 1971; a Trooper of the Month certificate letter, dated 6 August 1971; a Vietnam Combat certificate based on his participation as a member of the Golden Hawks for the period December 1969 to December 1970; and a Certificate of Appreciation for Service in the Armed Forces of the United States he was issued upon his separation.  

15.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 1, Section V stipulates that the objective of the Department of the Army military awards program is to provide tangible recognition for acts of valor, exceptional service or achievement, special skills or qualifications, and acts of heroism not involving actual combat.  Paragraph 1-14 outlines time limitations and states each recommendation must be entered into channels within 2 years of the act, achievement, or service to be honored.  

16.  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) 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.

17.  Under 10 USC 1130, the award request, with a DA Form 638, must be submitted through a Member of Congress to 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 facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

18.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states a bronze service star is authorized with this award for each campaign a member was credited with participating in while serving in the RVN.  A silver service star is issued in lieu of 5 bronze service stars to denote participation in 
5 campaigns.  

19.  Paragraph 3-17 of the awards regulation contains guidance on award of the ARCOM.  It states it is awarded for heroism, meritorious achievement or meritorious service of a member who distinguishes himself or herself by an act of heroism, extraordinary achievement, or meritorious service.  The regulation requires that this award be recommended, approved by the proper authority, and announced in official orders.

20.  Paragraph 8-13 of the awards regulation contains guidance on the Senior Parachutist Badge.  It states to be eligible for this badge an individual must have been rated excellent in character and efficiency and have participated in a minimum of 30 jumps to include the following: 

   a.  Fifteen jumps with combat equipment to consist of normal TOE equipment including individual weapon carried in combat whether the jump was in actual or simulated combat. In cases of simulated combat the equipment will include water, rations (actual or dummy), ammunition (actual or dummy), and other essential items necessary to sustain an individual in combat;

   b.  Two night jumps made during the hours of darkness (regardless of time of day with respect to sunset) one of which will be as jumpmaster of a stick;

   c.  Two mass tactical jumps which culminate in an airborne assault problem with either a unit equivalent to a battalion or larger; a separate company battery; or an organic staff of regimental size or larger. The Soldier must fill a position commensurate with his or her rank or grade during the problem; and 

   d.  These prerequisite requirements must be obtained by static line parachuting. 
21.  Paragraph 8-28 of the awards regulation contains guidance on the Basic Aviation Badge (formerly known as the Aircraft Crew Member Badge).  To qualify for the badge a member must be on flying status, have performed crewmember or noncrewmember flying duties for not less than 12 months, or logging not less that 48 flight hours, or be school trained.  

22.  Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, provided policy and criteria concerning individual military decorations.  It stated, in pertinent part, that the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

23.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant's tenure of assignment in the RVN, his units (503rd Infantry Regiment and 162nd Aviation Company) received the RVN Gallantry Cross with Palm Unit Citation (22 October 1967-26 September 1970, DAGO 51, 1971) and RVN Civil Actions Honor Medal First Class Unit Citation (15 April 1969-16 March 1971, DAGO 5, 1973).  It also shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the following campaigns:

* Vietnam Counteroffensive Phase VI (2 November 1968-22 February 1969)
* TET 69 Counteroffensive (23 February- 8 June 1969)
* Vietnam Summer-Fall 1969 (9 June-31 October 1969)
* Vietnam Winter-Spring 1970 (1 November 1969-30 April 1970)
* Sanctuary Counteroffensive (1 May-30 June 1970)
* Vietnam Counteroffensive Phase VII (1 July 1970-30 June 1971)

24.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The instructions for entering awards in the version of the regulation in effect at the time stated to enter awards earned and military education completed during the period covered by the DD Form 214.  

25.  The separation documents regulation specifies that all awards authorized and contained in the order of precedence in the Army’s awards regulation will be entered.  It provides no provisions for entering letters or certificates of appreciation, achievement, or commendation on the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his record and DD Form 214 should be corrected to show award of the Aviation Badge, First Class Gunner Badge with M-60 Machine Gun Bar, and completion of the Junior Leadership Course, Helicopter Repair (MOS 67N) School, Army Aircraft and Principles of Flight 
Sub-Course have been carefully considered and found to have merit. 

2.  By regulation, members who were school trained or completed 48 flight hours are eligible for the Basic Aviation Badge.  The evidence of record confirms the applicant completed the 67N course.  Therefore, it would be appropriate to add the Basic Aviation Badge to his record and DD Form 214.  

3. The applicant’s record also confirms he received the Marksman Marksmanship Qualification Badge with Rifle (M-14) and Automatic Rifle (M-16) Bars, and he provides orders confirming he was awarded the First Class Badge with M-60 Machine Gun Bar.  As a result, it would also be appropriate to add these badges to his record and DD Form 214.  

4.  The record also shows that based on his service and campaign participation in the RVN, he is eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation and 1 silver and             1 bronze service star with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214. 

5. The regulation in effect at the time allowed for entering all military training and education completed during the period covered by the DD Form 214 in item 25 of the DD Form 214.  The applicant provides training certificates confirming he completed the UH-1 Helicopter Repair (MOS 67N) course in 1971, a Junior Leadership Course in 1972 and the Aviation 3 Sub-Course in 1972.  Therefore, it would be appropriate to add these courses to item 25 of his DD Form 214. 


6.  The applicant’s contention that the 2 days of time lost should be removed from his record and DD Form 214 has also been carefully considered.  However, his DA Form 20, which he last audited on 9 January 1972, confirms he was 
AWOL from 7 to 8 November 1970.  There is no evidence of record or independent evidence provided by the applicant that supports his assertion that he should not have been charged with this period of AWOL.  As a result, there is an insufficient evidentiary basis to remove the time lost from his record and DD Form 214.

7.  The applicant’s contention he should have been awarded the ARCOM was also carefully considered.  However, by regulation the ARCOM must be recommended, approved by the proper authority, and announced in official orders.  There is no evidence of record or independent evidence provided by the applicant that indicates he was ever recommended for the ARCOM.  As a result, there is also an insufficient evidentiary basis to support granting this portion of the requested relief.  While the available evidence is insufficient for awarding the applicant the ARCOM, this in no way affects his right to pursue his claim for the ARCOM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

8.  The applicant’s contention that he should have been awarded the AGCM was also carefully considered.  However, the regulation in effect at the time required a member to have been rated as "excellent" for the entire period of qualifying service.  In this case, the evidence of record confirms the applicant received an “unsatisfactory” conduct and “good” efficiency rating during his assignment to the 162nd Aviation Company in the RVN.  As a result, he did not meet the regulatory criteria necessary to qualify for award of the AGCM.  

9.  The applicant’s contention he should have received the Senior Parachutist Badge was also carefully considered.  However, by regulation in order to qualify for this badge a member must have been rated excellent in character and efficiency and have participated in a minimum of 30 jumps.  The evidence of record confirms the applicant received less than excellent character and efficiency ratings and does not contain a jump record confirming his participation in 30 jumps.  As a result, there is an insufficient evidentiary basis to support this award. 

10.  Finally, the applicant’s request to add the Soldier of the Month and Honorary Recruiter certificates to his DD Form 214 was also carefully considered.  However, the governing regulation provides for entering only authorized awards identified in the Army’s awards regulation to the DD Form 214.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.   
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 amending the following items of his 19 December 1972 DD Form 214 as indicated:

	a.  Item 24 - delete the current Vietnam Service Medal entry and replace it with the entry “Vietnam Service Medal with 1 silver and 1 bronze service star and add the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Aviation Badge, First Class Gunner Badge with M-60 Machine Gun Bar, and Marksman Marksmanship Qualification Badge with Rifle and Automatic Rifle Bars; and 

	b.  Item 25 - add the UH-1 Helicopter Repair (MOS 67N) Course, Aviation 3 
Sub-Course, and the Junior Leadership Course. 

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 removal of 2 days of time lost; award of the Army Commendation Medal, Army Good Conduct Medal, and Senior Parachutist Badge; and addition of the Soldier of the Month and Honorary Recruiter Certificates to his DD Form 214.  




      _______ _   __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)                                         AR20100010912



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ABCMR Record of Proceedings (cont)                                         AR20100010912



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