IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100015150 


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 the Silver Star, Bronze Star Medal, Purple Heart (three awards), all of his other authorized awards and decorations, and the period he served in the Republic of Vietnam (RVN).

2.  The applicant states he served in the RVN and his authorized awards are not recorded on his DD Form 214.

3.  The applicant provides a copy of his Bronze Star Medal Certificate.

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 for a period of 3 years on 1 April 1966.  Upon completion of training he was awarded military occupational specialty 36K (Field Wireman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 29 (Qualification in Arms) he qualified Sharpshooter with the M-14 Rifle on 12 May 1966 and Marksman with the M-16 Rifle on 31 October 1966;

   b.  item 31 (Foreign Service) he served in the U.S. Army Pacific (USARPAC) in the RVN beginning 21 November 1966 and that he extended his overseas tour with a projected rotation date of 12 February 1969;

   c.  item 38 (Record of Assignments) he was assigned to:

       (1)  Headquarters and Headquarters Company, 199th Infantry Brigade, from 21 November 1966 through 20 October 1968;

       (2)  the 298th Signal Platoon, 199th Infantry Brigade, from 21 October 1968 through 4 November 1968;

       (3)  the 313th Signal Company, 199th Infantry Brigade, on 5 November 1968 until his separation from active duty; and

	    (4)  he received conduct and efficiency ratings of "excellent" throughout his entire period of active service;

	d.  item 39 (Campaigns) he served in Vietnam during the Vietnam Counteroffensive Phase II, Vietnam Counteroffensive Phase III, and Tet Counteroffensive;

   e.  item 40 (Wounds) is blank; and

	f.  item 41 (Awards and Decorations) the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal, Valorous Unit Award, and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

4.  Headquarters, U.S. Army Training Center, Infantry, Fort Benning, GA, Special Orders Number 115, dated 16 May 1966, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.

5.  Headquarters, 199th Infantry Brigade (Separate) (Light), Fort Benning, GA, Special Orders Number 118, dated 31 October 1966, awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

6.  The applicant's DD Form 214 shows he entered active duty on 1 April 1966, was honorably released from active duty on 7 February 1969, and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  At the time he had completed 2 years, 10 months, and
7 days of net active service this period.

   a.  Item 22 (Statement of Service), block c (Foreign and/or Sea Service), shows 2 years, 2 months, and 17 days of foreign service.  [It does not show the last oversea theater in which service was performed]; and

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Army Commendation Medal.

7.  There are no orders or evidence in the applicant's military personnel records that show the applicant was recommended for or awarded the Silver Star.

8.  The available evidence does not show the applicant was wounded or treated for wounds as a result of hostile action or that he was awarded the Purple Heart.

9.  A review of The Adjutant General, Casualty Division's, Vietnam Casualty Roster, confirmed the applicant's name is not on the roster.

10.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any individual award orders pertaining to the applicant.

11.  There is no evidence in the applicant's military personnel records that the applicant received the first award of the Army Good Conduct Medal.  There is also no record of conviction by court-martial or any adverse information.

12.  The applicant's DA Form 20 shows he was awarded the Vietnam Service Medal and that he participated in three campaigns:

   a.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states that one bronze service star is authorized with this service medal for each Vietnam campaign a member is credited with participating in.  It also states that one silver service star is authorized to be worn on the service medal in lieu of five bronze service stars; and

   b.  Table B-1 contains a list of Vietnam campaigns and it shows that during the applicant's tour in Vietnam from 21 November 1966 to 6 February 1969, he participated in the following campaigns:

* Vietnam Counteroffensive Phase II  (1 July 1966 - 31 May 1967)
* 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)
* Vietnam Counteroffensive Phase VI  (2 November 1968 - 22 February 1969)

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  This pamphlet shows that at the time of the applicant's assignment to Headquarters and Headquarters Company,
199th Infantry Brigade, the unit was awarded the:

   a.  Valorous Unit Award by Department of the Army General Orders (DAGO) Number 48, dated 1968;
   
   b.  Meritorious Unit Commendation by DAGO Number 39, dated 1970;

   c.  Republic of Vietnam Gallantry Cross with Palm Unit Citation by DAGO Number 43, dated 1970; and
   
   d.  Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by DAGO Number 51, dated 1971.

14.  A National Personnel Records Center (NPRC), Military Personnel Records, St. Louis, MO, letter, dated 16 May 2005, verified the applicant's entitlement to the Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with one silver service star and one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Marksman Marksmanship Qualification Badge with Pistol and Rifle Bars, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.
15.  A National Personnel Records Center, Military Personnel Records, St. Louis, MO, letter, dated 12 December 2005, along with a DA Form 4980-5 (Bronze Star Medal) certificate and citation, show the applicant was authorized the Bronze Star Medal for meritorious achievement in ground operations in the RVN from December 1966 to February 1969.

16.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.  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.

17.  Army Regulation 600-8-22 provides policy, criteria, and administrative instructions concerning military awards and decorations:

   a.  The Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record;

   b.  Chapter 3 (U.S. Army Individual Decorations) provides for award of individual military decorations in time of war and peace for heroism and for meritorious achievement or service.  It states that for personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required;

	c.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required;


	d.  Title 10 of the U.S. Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award; and

	e.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, Soldier Programs and Services Division,
1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting 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.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, all available records will be used as a basis for the preparation of the DD Form 214, including the Service Record, Enlisted/Officer Qualification Record, and orders.
The instructions for:

   a.  item 22, block c, state enter the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed; and

	b.  item 24 state enter decorations awarded or authorized during the period covered by the DD Form 214, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Silver Star, Bronze Star Medal, Purple Heart (i.e., three awards), all of his other authorized awards and decorations, and the period of his service in the RVN.
2.  The evidence of record shows the applicant was credited with completing
2 years, 2 months, and 17 days of foreign service in the USARPAC and that his overseas service began on 21 November 1966.  Thus, he served overseas in USARPAC through 6 February 1969.  However, item 22, block c, does not show the last oversea theater in which his service was performed.  Therefore, it would be appropriate to correct this item to show "USARPAC. "

3.  The evidence of record shows:

   a.  The NPRC verified the applicant's entitlement to award of the Bronze Star Medal;

   b.  The applicant served a qualifying period of active service from 1 April 1966 to 7 February 1969 for the first award of the Army Good Conduct Medal:

       (1)  He received "excellent" conduct and efficiency ratings throughout his period of service.

       (2)  There is no record of a commander's disqualification for the award.

       (3)  The NPRC authorized the applicant the Army Good Conduct Medal.

       (4)  Therefore, it would be appropriate to award him the Army Good Conduct Medal (1st Award).

   c.  The applicant qualified for award of the Vietnam Service Medal and he served in six campaigns during his service in Vietnam, which entitles him to the Vietnam Service Medial with one silver service star and one bronze service star;

   d.  General orders awarded his unit the Valorous Unit Award and Meritorious Unit Commendation during the time he was assigned to the unit;

   e.  During his service in Vietnam, general orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation;

   f.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar; and 

   g.  Therefore, in view of all of the foregoing, it would be appropriate to correct the applicant's DD Form 214 to show the aforementioned awards and decorations.
4.  Notwithstanding the NPRC letter showing entitlement to the Marksman Marksmanship Qualification Badge with Pistol Bar, this appears to be in error.
There are no orders or other evidence of record that shows the applicant qualified Marksman with the pistol.  Therefore, no action is being taken to correct his DD Form 214 to show this badge and the component bar.

5.  The applicant's claims to the Purple Heart and Silver Star were carefully considered:

   a.  There is no evidence in the available records that shows the applicant was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record:

	    (1)  The applicant's name is not listed on the Vietnam Casualty Roster.

	    (2)  There are no orders that show he was awarded the Purple Heart.
   
       (3)  Therefore, there is insufficient evidence to support the applicant's claims to the Purple Heart.
   
   b.  There is no evidence the applicant was recommended for or awarded the Silver Star:
   
       (1)  The evidence of records shows that for award of personal decorations, announcement of the award in orders is required.

       (2)  There are no orders that show he was awarded the Silver Star.

       (3)  Therefore, there is insufficient evidence to support the applicant's claim to the Silver Star.

       (4)  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects his right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.


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 Army Good Conduct Medal (1st Award) for exemplary conduct, efficiency, and fidelity for the period 1 April 1966 to 7 February 1969;

   b.  adding to item 22, block c, of his DD Form 214 the entry "USARPAC";

   c.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal; and
   
   d.  adding to item 24 of his DD Form 214 the Bronze Star Medal, Army Good Conduct Medal (1st Award), Vietnam Service Medal with one silver service star and one bronze service star, Valorous Unit Award, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

2.  The Board further determined 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 the Purple Heart and Silver Star.




      _______ _   _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)                                         AR20100015150



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ABCMR Record of Proceedings (cont)                                         AR20100015150



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