IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100018951 


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 Separation or Discharge) to show the Combat Infantryman Badge and the Air Medal.

2.  The applicant states he served in combat in the Republic of Vietnam and he was wounded in action.  He was assigned to Company C, 12th Cavalry Regiment, 1st Cavalry Division on 7 February 1971 and he was injured on
29 October 1971.  He had an 80 percent (%) disabling rating percentage due to his combat injuries.  He states he was awarded the Combat Infantryman Badge, Bronze Star Medal, Purple Heart, and the Air Medal but only two of these awards are shown on his DD Form 214.

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

	a.  a copy of his DD Form 214 with a separation date of 1 June 1972;

	b.  General Orders Number 2068, issued by Headquarters, 3rd Brigade (Separate), 1st Cavalry Division (Airmobile), dated 30 October 1971;

	c.  General Orders Number 2238, issued by the same headquarters, dated 16 November 1971; and


	d.  a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 21 April 1972, with an undated letter of recommendation.

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 Regular Army on 26 January 1970.  He completed his initial entry training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 27 January 1971 to on or about 3 November 1971.  He served with Company C, 1st Battalion, 12th Cavalry Regiment, 3rd Brigade, 1st Cavalry Division.

4.  Item 38 (Record of Assignments) of his DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his period of service.  His military personnel records do not show any time lost or a record of court-martial.  There is also no record of a commander's disqualification for the first award of the Army Good Conduct Medal or a record of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

5.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Air Medal or the Combat Infantryman Badge.  His personnel service record is void of orders announcing award of the Air Medal or the Combat Infantryman Badge.

6.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 orders awarding the applicant the Air Medal or the Combat Infantryman Badge.

7.  On 16 March 1972, a medical evaluation board (MEB) found the applicant unfit for duty and referred him to a PEB.  Within the MEB, a medical report states, "THE PATIENT HAD SUSTAINED INJURIES TO BOTH LOWER EXTREMITIES, SECONDARY TO CLAYMORE MINE EXPLOSION IN THE REPUBLIC OF VIETNAM ON 29 OCTOBER 1971."

8.  On 21 April 1972, a PEB found the applicant physically unfit for duty due to the loss of use of both feet.  The PEB recommended a combined rating of 100% and placement on the temporary disability retired list (TDRL).

9.  On 1 June 1972, the applicant was retired and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) with placement on the TDRL.  His DD Form 214 shows he completed 2 years, 4 months, and 5 days of total active service with item 12c (Foreign and/or Sea Service) showing he served 1 year, 4 months, and 3 days of foreign service in U.S. Army, Pacific (USARPAC).

10.  Item 24 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Vietnam Service Medal
* [Republic of] Vietnam Campaign Medal [with Device (1960)]
* Bronze Star Medal
* Purple Heart

11.  On 8 November 1973, the applicant was medically reevaluated during a periodic physical examination.  The examination results show his disability had not reached a point of stability.  On 3 January 1974, a PEB determined he should be retained on the TDRL and a reexamination period was established for June 1975.

12.  On 4 August 1975, the applicant was medically reevaluated while on the TDRL.  On 5 September 1975, a PEB determined he was physically unfit and recommended a combined rating of 80% and permanent retirement.

13.  On 1 November 1975, he was permanently retired.


14.  In support of his application, the applicant provided a letter from a veteran of his military unit who served with him in the Republic of Vietnam.  He states that he was the applicant's squad leader from July to 29 October 1971, the date they both were wounded.  During their period of service together, he states they participated in nine combat assault missions and were in direct contact with enemy forces.

15.  References: 

	a.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided guidelines for award of the Air Medal.  It stated that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  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.

	c.  Army Regulation 672-5-1 (Military Awards), in effect at the time the applicant was separated, required that the enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial throughout a qualifying period of service for award of the Army Good Conduct Medal.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.

	d.  Army Regulation 600-8-22 provides for award of the Vietnam Service Medal and states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  During the applicant's tour of duty in Vietnam, he participated in two campaigns:

* Vietnamese Counteroffensive Phase VII (1 July 1970 - 30 June 1971)
* Consolidation I (1 July - 30 November 1971)

	e.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the Republic of Vietnam.  This pamphlet shows the unit to which the applicant was assigned was awarded the:

* Valorous Unit Award for the period 23 September - 25 October 1971 by Department of the Army General Orders (DAGO) Number 5, dated 1985 
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 17 September 1965 - June 1972 by DAGO Number 54, dated 1974

DISCUSSION AND CONCLUSIONS:

1.  The fact that a claymore mine explosion wounded the applicant is prima fascia evidence that he was accompanying his unit on combat missions.  This, along with the fact that his unit was awarded the Valorous Unit Award during his combat tour, creates a preponderance of evidence that he met the criteria for the Combat Infantryman Badge.  Therefore, his DD Form 214 should be corrected to show this award.

2.  The applicant contends he was awarded the Air Medal while serving in the Republic of Vietnam.  However, no general orders were found in his personnel service record or within ADCARS to support his contention that he was awarded the Air Medal.  Therefore, there is no basis for granting this portion of the applicant's request to show this award.

3.  The applicant's records show he received "excellent" conduct and efficiency ratings throughout his tenure of service and that he was fully qualified for reenlistment.  There is no record of evidence showing a commander's disqualification.  Therefore, the applicant is entitled to the first award of the Army Good Conduct Medal based on completion of a qualifying period of service from 26 January 1970 to 1 June 1972 ending with termination of his first period of qualifying Federal military service.

4.  Records show his unit received the Valorous Unit Award and the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tour of duty in the Republic of Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.



5.  Records show the applicant was awarded the Vietnam Service Medal.  Records also show he participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to two bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his
DD Form 214 to show these bronze service stars.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL 

________  ________  ________  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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (1st award) for the period
26 January 1970 through 1 June 1972; and

	c.  adding to item 24 of his DD Form 214 the:

* Army Good Conduct Medal (1st award)
* Combat Infantryman Badge
* Vietnam Service Medal with two bronze service stars
* Valorous Unit Award
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

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 Air Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  


The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20100018951



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ABCMR Record of Proceedings (cont)                                         AR20100018951



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