BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100023431 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that he was released from active duty in the pay grade of E-5 and that he was awarded the Purple Heart and the Combat Infantryman Badge (CIB).

2.  The applicant states that his DD Form 214 should reflect that he was serving in the pay grade of E-5 at the time of his REFRAD and that he was awarded the Purple Heart and the CIB.

3.  The applicant provides a copy of a promotion standing list and a copy of email traffic to his congressional representative’s office. 

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 was inducted in Cleveland, Ohio on 25 June 1969.  He completed his basic training and his advanced individual training as an armor reconnaissance specialist at Fort Knox. Kentucky and was transferred to Vietnam on 22 November 1969 for assignment to Troop C, 1st Squadron, 11th Armored Cavalry Regiment, II Field Force – Vietnam in military occupational specialty (MOS) 11D2O.  

3.  On 21 January 1970 the applicant was wounded in the right shoulder by fragments when his unit encountered a battalion-size enemy force.  

4.  He was advanced to the pay grade of E-4 on 4 April 1970 and on 18 April 1970 he was evacuated to the 93d Evacuation Hospital.  He was subsequently evacuated to a hospital at Camp Zama, Japan and then to Walter Reed General Hospital in Washington, D.C.

5.  On 16 June 1970 he was assigned to Troop G, 2d Squadron, 6th Armored Cavalry Regiment.

6.  On 16 February 1971 he appeared before a promotion selection board for promotion to the pay grade of E-5.  He attained promotion list standing and was placed on the unit Standing Promotion List with a score of 519 promotion points.  There were four other Soldiers with the same MOS who had higher scores than the applicant.

7.  On 29 March 1971 the applicant was honorably released from active duty (REFRAD).  He had served 1 year, 9 months, and 5 days of total active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Vietnam Campaign Medal, and the Army Commendation Medal with “V” Device.

8.  A review of the applicant’s official records failed to show orders awarding the applicant the CIB and the Purple Heart.  However, his records do confirm that he was subsequently awarded the Purple Heart.  Additionally, his records show that he had "excellent" conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

10.  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.  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.

11.  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.  It shows that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  It also shows that he participated in two campaigns while in Vietnam. 

12.  Army Regulation 600-8-22 states a bronze service star, based on qualifying service for each campaign listed in appendix B will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DD Form 214 should be corrected to reflect his award of the Purple Heart has been noted and appears to have merit.  There is sufficient evidence in the available records to show that the applicant was entitled to award of the Purple Heart and therefore it is reasonable to presume that he was awarded the Purple Heart as he contends.  Accordingly, it should be added at this time.

2.  A review of the applicant's records shows he had "excellent" conduct and efficiency ratings throughout his period of service and his records contain no derogatory information that would serve to disqualify him for the first award of the AGCM.  Therefore, it appears that the failure to award him the first award of the AGCM was the result of an administrative error.  Accordingly, he should be awarded the AGCM (1st Award) for the period 25 June 1969 to 29 March 1971 and his DD Form 214 should be corrected to show this award.

3.  The applicant also served during two campaigns in Vietnam and thus is entitled to two bronze service stars for wear on his already-awarded VSM.
4.  Additionally, the evidence of record shows the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he served with the unit.  Accordingly, this unit award should be added to his records at this time as well.

5.  The applicant’s contention that his DD Form 214 should reflect that he was REFRAD in the pay grade of E-5 has been noted and appears to lack merit.  The applicant attained promotion list standing the month before he was REFRAD and there is no evidence in the available records to show that he was ever promoted from that standing list.  Therefore, in the absence of such evidence there appears to be no basis to grant that portion of his request.

6.  The applicant’s contention that he should be awarded the CIB has also been noted and appears to lack merit.  There are no orders awarding him the CIB in his records and the evidence of record shows that he was assigned to an armored cavalry unit in Vietnam.  Therefore, since he was not assigned to an infantry unit, it appears that he is not entitled to award of the CIB. 

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:  

* awarding him the AGCM (1st Award) for the period of 25 June 1969 to 29 March 1971 while serving in the rank of specialist four
* deleting award of the VSM from his DD Form 214
* adding the award of the Purple Heart, the AGCM (1st Award), the VSM with two bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to 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 showing that he was REFRAD in the pay grade of E-5 and adding the CIB to 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)                                         AR20100023431





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ABCMR Record of Proceedings (cont)                                         AR20100023431



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