IN THE CASE OF:	  

		BOARD DATE:	    30 November 2010

		DOCKET NUMBER:  AR20100013850 


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 items 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Report of Transfer or Discharge) to show specialist/E-4; item 11d (Effective Date) to show 18 September 1969; and 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) to show award of the Combat Infantryman Badge, Vietnam Service Medal, Armed Forces Expeditionary Medal (AFEM), and the Expert Marksmanship Qualification Badge with Rifle Bar.  

2.  The applicant states:

* These were gross administrative errors
* He was in Korea until 2 March 1969
* His DA Form 20 (Enlisted Qualification Record) shows his rank as E-3 as of 20 February 1968 but he was promoted to E-4 before his discharge
* He was injured in Vietnam, evacuated to Korea, and assigned there after his recuperation

3.  The applicant provides:

* DD Form 214
* DA Form 20




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 on 30 August 1967 for a period of 3 years.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  His DA Form 20 shows he arrived in Vietnam on 
15 February 1968.  He served in MOS 11B while assigned to Company A, 1st Battalion, 5th Cavalry of the 1st Cavalry Division in Vietnam from 20 February 1968 until he was hospitalized in April 1968.  He was later assigned to Korea.  On 18 September 1968, the applicant was honorably discharged by reason of physical disability (existed prior to service).

3.  Item 5a on the applicant's DD Form 214 shows the entry "PVT (P)" [private (permanent)].  Item 5b on his DD Form 214 shows the entry "E2."  Item 6 (Date of Rank) on his DD Form 214 shows the entry "9 Sep 68" [9 September 1968].  Item 11d on his DD Form 214 shows the entry "18 Sep 68" [18 September 1968].  Item 24 on his DD Form 214 shows the National Defense Service Medal as an authorized award.  His DD Form 214 shows he was separated from the service on temporary records and a Soldier's affidavit.

4.  The available records contain two DA Forms 20 with contradictory information. 

5.  Orders, dated 24 October 1967, show the applicant received the Expert Marksmanship Qualification Badge with Rifle Bar effective 17 October 1967. 

6.  Headquarters, 1st Cavalry Division (Airmobile) Special Orders Number 100, dated 9 April 1968, show the applicant received the Combat Infantryman Badge. 

7.  Item 31 (Foreign Service) on the applicant's DA Form 20 shows he served in Korea from 18 April 1969 through 2 March 1969.

8.  Item 33 (Appointments and Reductions) on the applicant's DA Form 20 shows he was appointed to the permanent rank of private first class, effective 
20 February 1968.  

9.  Item 41 (Awards and Decorations) on the applicant's DA Form 20 shows, among other awards, entitlement to the AFEM.

10.  A DA Form 1361 (Recommended Findings of Physical Evaluation Board), dated 14 August 1968, show the applicant's rank as "PFC (E-3)."

11.  Discharge orders, dated 18 September 1968, show the applicant's rank as "PVT E2."

12.  The available records contain MOS orders, dated 14 November 1968, which show the applicant's rank as private first class.

13.  There is no evidence of record which shows the applicant was promoted to specialist/E-4 prior to his discharge.

14.  There is no evidence of record which shows the applicant was discharged on 18 September 1969. 

15.  Records show the applicant participated in two campaigns during his assignment in Vietnam.

16.  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 1st Battalion, 5th Cavalry, was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Order Number 59, dated 1969.  

17.  Army Regulation 600-8-22 (Military Awards) states the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of U.S. Army Vietnam (USARV) Regulation 672-1 states that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

18.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.  

19.  Army Regulation 600-8-22 states the AFEM is awarded for qualifying service after 1 July 1958 in military operations within a specific geographic area during a specified time period.  It states individuals qualified for the AFEM for service in Korea from 1 October 1966 to 30 June 1974.  

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant received the Combat Infantryman Badge and Expert Marksmanship Qualification Badge with Rifle Bar.  Therefore, his DD Form 214 should be corrected to show these awards.   

2.  Based on the applicant's service in Vietnam and participation in two campaigns, he is eligible for the Vietnam Service Medal with two bronze service stars.  Therefore, his DD Form 214 should be corrected to show this medal. 

3.  The applicant served a period of qualifying service for the AFEM for service in Korea.  Therefore, his DD Form 214 should be corrected to show this medal.

4.  The applicant contends he was discharged on 18 September 1969 and he points out his DA Form 20 shows he served in Korea until 2 March 1969.  However, his discharge orders show he was discharged on 18 September 1968.  It is acknowledged he may have been extended on active duty; however, there is insufficient evidence to confirm a different separation date.  

5.  The applicant contends he was promoted to E-4 prior to his discharge.  However, there is no evidence of record and the applicant did not provide any evidence which shows he was promoted to specialist/E-4 prior to his discharge.  Therefore, there is insufficient evidence on which to amend items 5a and 5b on his DD Form 214.

6.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.  Therefore, his DD Form 214 should be corrected to show this unit award.





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 adding the Combat Infantryman Badge, Vietnam Service Medal with two bronze service stars, Armed Forces Expeditionary Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and Republic of Vietnam Gallantry Cross with Palm Unit Citation to item 24 on his DD Form 214.

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 amending items 5a, 5b, or 11d on 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)                                         AR20100013850





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013850



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1