IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100027257 


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 a conversation between him and a member of the Board's staff that his upgraded DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show:

* his correct dates of service
* Company A, 84th Engineer Battalion as his last duty assignment
* his correct dates of Vietnam service
* bronze service stars to be worn on his Vietnam Service Medal
* the Combat Infantryman Badge (CIB)

2.  The applicant states in a conversation between him and the Board's staff that he enlisted in the Regular Army on 1 April 1968, served in combat as an infantryman before he reenlisted, and served two tours in Vietnam.

3.  The applicant provides his upgraded DD Form 214 and a page from the Army Discharge Review Board (ADRB) proceedings.

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’s military records show he took an enlistment physical examination on 28 March 1969.  He signed a DD Form 4 (Enlistment Contract – Armed Forces of the United States) enlisting in the Regular Army on 1 April 1969.  

3.  He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and commenced his tour in Vietnam on 1 September 1969 where he was assigned to Company B, 3d Battalion, 1st Infantry Brigade as a rifleman.

4.  On 30 November 1969, he was honorably discharged for immediate reenlistment.  He was issued a DD Form 214 which recorded his service from 1 April to 30 November 1969.  That DD Form 214 shows his MOS as light weapons infantryman and the Vietnam Service Medal but does not show he was awarded the CIB or any bronze service stars.  On 1 December 1969, he reenlisted.

5.  He was reassigned to Headquarters and Headquarters Company, 34th Engineer Battalion in Vietnam where he performed duties as a refrigeration specialist, and then to Company A, 34th Engineer Battalion where he served as a heavy vehicle driver.  He departed Vietnam on 15 September 1970.

6.  He was assigned to Germany from 2 November 1970 to 23 March 1971.

7.  He was again assigned to Vietnam on 24 May 1971 where he was assigned as a motor transport operator with Company A, 84th Engineer Battalion.

8.  He requested a discharge in lieu of court-martial while in Vietnam and his request was approved by a commanding general in Vietnam.  He departed Vietnam on an unknown date and was given an undesirable discharge on 19 December 1971.  The DD Form 214 he was issued shows his:

* dates of service as 1 December 1969 to 19 December 1971
* last unit as Company A, 94th Engineer Battalion

9.  This DD Form 214 does not list any awards or decorations.


10.  On 14 December 1979, the ADRB upgraded the applicant's undesirable discharge to a general discharge.  The upgraded DD Form 214 he was issued shows the same entries in last duty assignment and dates of service as the original DD Form 214.  However, it lists the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device 1960, two Overseas Service Bars, and Expert Marksmanship Qualification Badge with Rifle Bar.  It also lists his Vietnam service as 24 May 1971 – 23 May 1972.

11.  Army Regulation 635-5 provides that, effective 1 October 1979, DD Forms 214 are not issued to enlisted service members who are discharged for immediate reenlistment.  Prior to that date a DD Form 214 was issued at the time of reenlistment.  For continuous service, a DD Form 214 would record the date entered active duty as the day following the date of discharge in the DD Form 214 which recorded the service preceding the reenlistment.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (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 USARV 672-1 provides 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.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), shows that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for a period which included the dates the applicant was assigned to that unit.  That publication also shows the pertinent identified campaign periods, for which a bronze service star is authorized for wear on the Vietnam Service Medal.  A silver service star is worn in place of five bronze service stars.  Those periods are:  Vietnam Summer-Fall 1969 (9 June 1969 through 31 October 1969); Vietnam Winter-Spring 1970 (1 November 1969 through 30 April 1970); DA Sanctuary Counteroffensive (1 May through 30 June 1970); Vietnam Counteroffensive Phase VII (1 July 1970 through 30 June 1971); Consolidation I (1 July 1971 to 30 November 1971); Consolidation II (1 December 1971 to 29 March 1972).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records clearly show he enlisted in the Regular Army on 1 April 1969.  As such, there is no basis to change that date on his first DD Form 214.

2.  He was given two DD Forms 214 that cover his entire period of service.

3.  It is clear that the applicant's last unit was Company A, 84th Engineer Battalion.  As such, it would be appropriate to correct his DD Form 214, item 7, to show that unit.

4.  The applicant's Vietnam service is obviously in error since the end date is after his discharge.  While his record does not contain the actual date he returned from Vietnam after his second tour, since his discharge was approved in Vietnam it would be reasonable to presume he departed Vietnam the day prior to his discharge:  18 December 1971.  As such, it would be appropriate to replace the entry "VIETNAM SERVICE:  24 MAY 71-23 MAY 1972" with "VIETNAM SERVICE, 1 SEPTEMBER 1969 – 15 SEPTEMBER 1970 AND 24 MAY 1971 - 18 DECEMBER 1971."

5.  As for the CIB, the applicant held an infantry MOS and was assigned to an infantry company as a rifleman in Vietnam for 2 1/2 months.  However, there is no evidence that shows he served in active ground combat.  Without such verification, there is insufficient evidence in which to award him 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 amending his DD Form 214 for the period ending 19 December 1971 as follows:

   a.  deleting the entry in item 7 and adding "Company A, 84th Engineer Battalion."

   b.  deleting from item 18 "VIETNAM SERVICE:  24 MAY 71-23 MAY 1972" and adding "VIETNAM SERVICE 1 SEPTEMBER 1969–15 SEPTEMBER 1970 AND 24 MAY 1971-18 DECEMBER 1971."
   c.  adding to item 13 the Republic of Vietnam Gallantry Cross with Palm Unit Citation and one silver service star and one bronze service star to be worn on his Vietnam Service Medal.
   
   d.  providing him a document to show the above corrections.

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 the CIB and date of initial entry on active duty.




      ____________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)                                         AR20100027257



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ABCMR Record of Proceedings (cont)                                         AR20100027257



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