IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021051 


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, that the following items be corrected on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge):

   a.  item 11a (Type of Transfer or Discharge) changed to show he was permanently retired; 
      
   b.  item 31 (Permanent Address for Mailing Purposes after Transfer or Discharge) changed to show 7xxx Cxxxx Rxxxx, Corpus Christi, TX, 78413; and 
      
   c.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) changed by adding the Combat Infantryman Badge.

2.  He states, in effect, all of the errors occurred upon his entry or discharge from the military.

3.  He provides:

* His DD Form 214 
* Letter Orders Number D 1-749, dated 29 June 1973
* DD Form 215 (Correction to DD Form 214)
* Three pages from his medical records


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.  On 31 May 1966, the applicant enlisted in the Regular Army.  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

   a.  Item 22 (Military Occupational Specialties (MOS)) 11C (Infantry Indirect Fire Crewman);
      
   b.  Item 31 (Foreign Service) Republic of Vietnam (RVN) from 30 March 1968 to 25 August 1968;

   c.  Item 38 (Record of Assignments) he was assigned to Company E, 2nd Battalion, 1st Infantry Regiment, 196th Light Infantry Brigade, in MOS 11C during his tenure in the RVN;
      
   d.  Item 38 "excellent" conduct and efficiency ratings for all assignments; 
      
   e.  Item 40 (Wounds) that on 23 August 1968 he received fragment wounds both feet, leg (left), arms, face, chin, and neck; and 
      
   f.  Item 41 (Awards and Documents) award of the Vietnam Service Medal, National Defense Service Medal, Vietnam Campaign Medal with "1960" Device, Bronze Star Medal with "V" Device, Purple Heart, Expert Marksmanship Qualification Badge with Rifle Bar [M-14], and Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-16].




4.  General Orders Number 4973, Headquarters, Americal Division, dated 30 July 1968, show he was awarded the Bronze Star Medal with "V" Device for distinguishing himself by exceptionally valorous actions while assigned as a squad leader in the mortar platoon, Company E, 2nd Battalion, 1st Infantry, 196th Infantry Brigade.

5.  He submitted extracts from his medical records, dated 26 August 1968, which show, on 26 August 1968, he was admitted to the U.S. Naval Hospital, Yokosuka, Japan for:

* Shrapnel wounds to lower extremities, face, and neck
* Burn, second degree, left arm, due to enemy mortar – 22 August 1968 – 0430 hrs, Line of duty, not misconduct

6.  General Orders Number 7220, Headquarters, Americal Division, dated 17 September 1968 show he was awarded the Purple Heart for wounds received on 23 August 1968 while he was assigned to the 2nd Battalion, 1st Infantry, 196th Infantry Brigade while performing infantry duties.

7.  He underwent a physical evaluation board (PEB) on 8 April 1969.  The evaluation determined he was unfit for duty due to a sciatic nerve, paralysis of, left, incomplete, with 2.5 cm atrophy of calf," causalgia" (with only partial relief from sympathectomy), and requiring short leg brace for ambulation and ankle, limited motion of, right, slight.

8.  The PEB recommended that he be permanently retired from the service.  He concurred with the aforementioned findings and recommendation and waived a formal hearing.

9.  On 30 April 1969, the U.S. Army Physical Review Council, Walter Reed Army Medical Center, Washington, DC, modified the findings of the PEB and recommended that the applicant be placed on the temporary disability retired list (TDRL) and that he be considered again for permanent retirement within 5 years. 

10.  On 5 May 1969, he concurred with the aforementioned findings recommendation.

11.  Special Orders Number 114, issued by the Department of the Army, dated 13 June 1969, show he was retired effective 20 June 1969 and placed on the TDRL effective 21 June 1969.



12.  The DD Form 214 he was issued shows in:

   a.  Item 11a Retired;
      
   b.  Item 11c (Reason and Authority) placed on the TDRL;
      
	d.  Item 21 (Home of Record at Time of Entry into Active Service) 6xx Exxx Mxxxxxx, Raymondville (Willacy), TX 78580;
   
   d.  Item 23a (Specialty Number and Title) MOS 11C4O Infantry Indirect Fire Crewman; and 

   e.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) award of the Purple Heart, Vietnam Campaign Medal, Vietnam Service Medal, and National Defense Service Medal. 

13.  The PEB reevaluated all of the available medical records on 19 December 1972 and found the applicant was unfit for duty due to a sciatic nerve, paralysis of, left, incomplete, severe.  Based on this review the PEB:

* Found his physical condition unfitting and with a combined rating of 40 percent
* Recommended that he be permanently retired

14.  He elected not to appear before the PEB and did not appeal the PEB decision.

15.  Orders Number D 1-749, issued by the Department of Army Personnel Center, dated 29 January 1973, show the applicant was removed from the TDRL on 28 February 1973 and permanently retired on the following day due to a permanent physical disability that was rated 40 percent disabling.

16.  On 27 August 2009, the applicant was issued a DD Form 215 to show award of the Bronze Star Medal with "V" Device.

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated that a DD Form 214 would be issued to all personnel at the time of retirement, discharge, or release from active duty including each member separated for physical disability.  A DD Form 214 would not be issued for personnel being removed from the TDRL.


18.  Army Regulation 635-5 also establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  It states, in pertinent part, that the mailing address should be the permanent address for mailing purposes furnished by the individual at the time of separation.  If the individual is not present, the home of record address will be used.  

19.  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 MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.

20.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* TET Counteroffensive (30 January 1968 - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April 1968 – 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July 1968 – 1 November 1968)

21.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

22.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualifying period of active duty enlisted service.  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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  

23.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the unit to which the applicant was assigned was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for action during the period 20 July 1965 – 28 March 1973, by General Orders Number 8, dated 1974.


DISCUSSION AND CONCLUSIONS:

1.  A DD Form 214 documents a member's active service.  There are no regulatory provisions that provide for correcting a DD Form 214 based on actions that take place subsequent to a member's separation from active service.  The applicant's time on the TDRL was not active service.  The applicant's DD Form 214 that he was issued on 20 June 1969 correctly documents his active service.  The applicant was appropriately issued orders to show he was removed from the TDRL and permanently retired.

2.  The available record shows the applicant was not available to sign his DD Form 214 at the time of separation.  The regulatory guidance states the home of record address, which is the address used at the time of entry into active service, will be used if the individual is not available to provide an address.  The applicant's home of record address was "6xx Exxx Mxxxxxxx, Raymondville (Willacy), TX 78580" which is the address shown on his DD Form 214.

3.  In view of the applicant's award of the Purple Heart and Bronze Star Medal with "V" Device, it appears he participated in active ground combat while assigned to a qualifying infantry unit of brigade, regimental, or smaller size, while serving in a qualifying MOS in the RVN.  Therefore, he is entitled to have his 
DD Form 214 corrected to show award of the Combat Infantryman Badge.

4.  The available evidence confirms the applicant served in the Army from 31 May 1966 to 20 June 1969.  His records show that he received "excellent" conduct and efficiency ratings throughout his tenure of service.  There is no evidence of any derogatory information that would have disqualified the applicant from award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award the applicant the Army Good Conduct Medal (1st Award) and correct his DD Form 214 to show this medal.

5.  Special orders awarded him the following marksmanship qualification badges.
Therefore, he is entitled to have them shown on his DD Form 214:

* Expert Marksmanship Qualification Badge with Rifle Bar [M-14]
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-16]

6.  DAGOs awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during his period of assignment.  Therefore, he is entitled to have his DD Form 214 corrected to show this award. 

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

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

	b.  awarding him the Army Good Conduct Medal (1st Award) for the period 31 May 1966 to 30 May 1969 and the Combat Infantryman Badge; 

   c.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal, Combat Infantryman Badge, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Rifle Bars [M-14], and Sharpshooter Marksmanship Qualification Badge with Rifle Bars [M-16."

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 correction of item 11a of his DD Form 214 to show he was permanently retired and correction of item 31 of his DD Form 214 to change his permanent mailing address.



      __________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)                                         AR20100021051



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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