IN THE CASE OF:	  

		BOARD DATE:	    10 March 2011

		DOCKET NUMBER:  AR20100020898 


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 award of the Army Good Conduct Medal (AGCM), Purple Heart (PH), Combat Infantryman Badge (CIB), Army Commendation Medal (ARCOM), Cold War Service Medal (CWSM), and Vietnam Service Medal (VSM).

2.  The applicant states:

   a.  his command neglected to award him all of the medals and badges he
earned;

   b.  he was sent to Vietnam in October 1968 and he was transferred to Korea during that same month;

   c.  while involved in fire fights and sniper attacks he was injured due to
enemy action; however, the political situation at that time did not warrant the acknowledgement of combat situations other than their involvement in Vietnam; and 

3.  The applicant provides no additional documents.






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 has not exhausted all of the administrative remedies available to him regarding his request for award of the CIB.  As a result, he was informed under a separate cover, to submit a request for award of the CIB to the U.S. Army Human Resources Command (HRC) for review and possible administrative correction of his records to show award of the CIB.  Accordingly, this portion of his request will not be discussed any further in this Record of Proceedings.

3.  The Cold War Recognition Certificate, rather than the Cold War Service Medal, was approved in 2001 and was established by Public Law 105-85, Section 1084, to recognize all members of the Armed Forces and qualified Federal government civilian personnel who faithfully and honorably served the United States during the Cold War Era from 2 September 1945 to 26 December 1991.  All requests for this certificate must be submitted in writing to Cold War Recognition, 4035 Ridge Top Road, Fairfax, Virginia 22030-7445.  Given this administrative remedy is available, the portion of the applicant's request pertaining to the Cold War Recognition Certificate will also not be further discussed.

4.  The applicant’s military record shows he was inducted into the Army of the United States and entered active duty on 29 May 1968.  He was trained in and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 5 November 1968 through 29 December 1969.  Item 38 shows the applicant received no less than “excellent” conduct and efficiency ratings at each of his active duty assignments and Item 40 (Wounds) contains no entries.

6.  His Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the first award of the Army Good Conduct Medal (AGCM).

7.  His records are void of any orders or other documents indicating that he was ever recommended for or awarded the PH or ARCOM by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a combat-related wound.

8.  On 31 December 1969, the applicant was honorably released from active duty after completing a total of 1 year, 7 months, and 2 days of active military service. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at that time shows, in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Expert Marksmanship Qualification Badge (Rifle M-16)
* Sharpshooter Marksmanship Qualification Badge (M60 Machine Gun)
* Marksman Marksmanship Qualification Badge (Rifle M-14)

9.  His OMPF contains a DD Form 215 (Correction to the DD Form 214) which added the Korea Defense Service Medal (KDSM) to item 24 of his
DD Form 214.

10.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty reporting roster.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  The regulation stipulates that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by a medical officer and a record of this treatment must have been made a matter of official record. 

   a.  Paragraph 2-13 of the awards regulation contains guidance on award of the VSM.  It states it is awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace there over, after 3 July 1965 through 28 March 1973.

   b.  Paragraph 3-17 of the awards regulation contains guidance on award of the ARCOM.  It states, in pertinent part, that the ARCOM is awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.

12.  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.  There must have been no convictions by a court-martial.

13.  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.

14.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, United States Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY  40122-5100.  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.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the AGCM, PH, ARCOM, and VSM.

2.  The applicant's DA Form 20 confirms the applicant received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments and his OMPF is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the AGCM.  As a result, he should be awarded the AGCM and his DD Form 214 should be corrected to show this award.

3.  By regulation, in order to support award of the PH, it is necessary to establish that the wound, for which the award is being made, was received as a direct result of or was caused by enemy action, that the wound was treated by military medical personnel and a record of this treatment must have been made a matter of official record.  

4.  The applicant’s record is void of any orders, or documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty and the record contains no medical treatment records indicating he was ever treated for a combat-related wound or injury.  Further, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence confirming he was wounded in action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

5.  By regulation, the ARCOM may only be awarded by the proper award approval authority based on a valid recommendation.  The evidence of record contains no orders or other documents that show the applicant was ever recommended for or awarded the ARCOM by proper authority while he served on active duty and he fails to provide any evidence to show his entitlements to this award.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

6.  While the available evidence is insufficient for awarding him an ARCOM, this in no way affects his right to pursue his claim under the provisions of Title 10, U.S. Code, section 1130.




7.  The evidence of record only confirms the applicant’s foreign service in Korea as evidenced by the entry contained in item 31 of his DA Form 20.  There is no evidence of record to show he completed any service in Vietnam to support his claim of entitlement to the VSM.  Accordingly, there is no basis for adding this award to his DD Form 214.

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 the period
29 May1968 through 31 May 1969;

b. adding the Army Good Conduct Medal to item 24 of his DD Form 214; and

c.  issuing him a document to reflect the above award.

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 Purple Heart, Army Commendation Medal, and Vietnam Service Medal.




      ___________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)                                         AR20100020898



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ABCMR Record of Proceedings (cont)                                         AR20100020898



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