IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006163 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the following awards:

* Army Good Conduct Medal (AGCM)
* Armed Forces Expeditionary Medal (AFEM)
* Korea Defense Service Medal (KDSM)
* Army Commendation Medal (ARCOM)
* Bronze Star Medal (BSM)

2.  He states that while he was still in Vietnam he was told he would receive the AGCM and the ARCOM.  He explains he was wounded for the fourth time while serving in Vietnam and he was sent to Japan to heal.  While in Japan, he received orders to go to Korea and he had to leave immediately.  He offers that his unit did not have his original DD Form 214 that documented his service in Korea (July to September 1967) and award of the AGCM and ARCOM.  They sent a new DD Form 214 with nothing on it.

3.  He provides the following:

* Two DD Forms 214
* DD Form 215 (Correction to DD Form 214)
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* DA Form 24 (Service Record)
* 
DA Form 20 (Enlisted Qualification Record)
* DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) 
* Special Orders Number 64, dated 19 December 1966
* General Orders Number 35, dated 9 February 1967
* Special Orders Number 237, dated 25 August 1967
* General Orders Number 3695, dated 28 October 1967
* Congressional correspondence

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 ABCMR granted the applicant's request that his records be corrected to show entitlement to awards he earned during his active duty service in Docket Number AC97-05372, dated 19 March 1997.  The Board considered his military personnel records and based on that review he was issued a DD Form 215 for all the awards he was entitled to receive at that time.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Board in Docket AC97-05372, dated 19 March 1997.

3.  The applicant's records show he enlisted in the Regular Army on 9 February 1961.  He was released from active duty on 11 February 1964 and transferred to the U.S. Army Reserve to complete his remaining service obligation.

4.  Section 4 (Chronological Record of Military Service-Conduct and Efficiency) of his DA Form 24 shows he received five "excellent," one "good," and one "unsatisfactory" rating in conduct and five "excellent" and one "unsatisfactory" rating in efficiency.  His rating of "good" was received during the period 5 November 1962 to 11 June 1963 and his rating of "unsatisfactory" was received during the period 13 January 1964 to 7 February 1964.  There are no other efficiency or conduct ratings listed on this form.

5.  Section 5 (Service Outside Continental United States) of his DA Form 24 shows he served in Korea from 13 November 1962 to 24 October 1963.

6.  Item 26 of his DD Form 214 for the period ending 11 February 1964 shows the following:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Bayonet Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar
* Expert Infantryman Badge

7.  His records show he again enlisted in the Regular Army on 26 February 1964 after a brief break in service.  He served in Vietnam/Korea from 5 September 1966 to 12 September 1967.  He was honorably discharged on 26 February 1968 and credited with completing 7 years and 3 days of total active duty service.

8.  Item 38 (Record of Assignments) of his DA Form 20 shows he was again assigned to Korea from 23 June 1967 to 11 September 1967.

9.  The applicant apparently separated with a temporary DA Form 20.  Item 38 of his DA Form 20 shows one rating of "excellent," for the period 1 July 1967 to    11 September 1967.  No other conduct and efficiency ratings are shown.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 and DD Form 215 for the period ending 26 February 1968 shows the following:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Pistol and Light Machine Gun Bars
* Expert Marksmanship Qualification Badge with Bayonet Bar
* Expert Infantryman Badge
* Purple Heart with 2nd Oak Leaf Cluster
* Vietnam Service Medal (VSM) with two bronze service stars
* Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

11.  Additionally, his records show he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on three occasions:  17 May 1963, 5 August 1966, and 11 December 1966.

12.  There are no orders in the applicant's records for award of the BSM, ARCOM, or AGCM.

13.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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 for the BSM or the ARCOM pertaining to the applicant.

14.  Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, provided that the AGCM was awarded to individuals who completed a qualified 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.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

15.  Army Regulation 600-8-22 (Military Awards) states the KDSM was authorized by the National Defense Authorization Act of 2003 and is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The area of eligibility encompasses all land area of the Republic of Korea and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is from 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or 60 nonconsecutive days.

16.  U.S. Army Vietnam Regulation 672-5-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  It stated the BSM may have been awarded for heroism or for meritorious achievement or service which did not involve aerial flight but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  The approval authority for award of the BSM was generally delegated no lower than brigadier generals in command of separate brigades.  

17.  Army Regulation 600-8-22 states the ARCOM may be 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

18.  Army Regulation 600-8-22 states the AFEM is awarded for qualifying service after 1 July 1958 in military operations within a specific geographic area during a specified time period.  It states individuals who qualified for the AFEM for service in Vietnam from 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal.  Upon request, the VSM may be awarded in lieu of the AFEM but the regulation requires that the AFEM be removed from the records of the individual. 
No person will be entitled to both awards for Vietnam service. 

19.  The same regulation shows the AFEM was awarded for Korea during the period 1 October 1966 to 30 June 1974.

20.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for the timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

21.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  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 evidence of record shows the applicant served 7 years and 3 days of active federal serve and received three Article 15's.  Further, the record shows he received one "good" and one "unsatisfactory" conduct rating during the first 3 years of qualification for the AGCM.  The regulation requires all "excellent" conduct and efficiency ratings.  Therefore, the ratings of "good" and "unsatisfactory" disqualify him for the award of the AGCM during the period 9 February 1961 to 8 February 1964.

2.  His records show he received only one conduct and efficiency rating of "excellent" during his second qualification period of service for the award of the AGCM, 9 February 1964 to 8 February 1967.  Although ratings of "unknown" and Article 15's for portions of the period under consideration were not disqualifying, the fact that he received three Article 15's, two during the qualifying period, suggests the commander would not have recommended him for the award of the AGCM.  Therefore, in absence of the commander's positive recommendation or orders, he is not entitled to this award.

3.  The evidence of record shows the applicant served in Vietnam from 5 September 1966 through 22 June 1967 and was awarded the VSM with two bronze service stars.  Therefore, his entitlement to the VSM makes him ineligible for the AFEM since only one award is authorized for his service in Vietnam.  

4.  The applicant served in Korea from 13 November 1962 to 24 October 1963 and again from 23 June 1967 to 12 September 1967.  His two tours in Korea entitle him to award of the KDSM, as well as the AFEM.  Therefore he is entitled to correction of his records to show these awards.

5.  There is no evidence and he has not provided any to show he was awarded the BSM or ARCOM.  In the absence of orders, there is insufficient evidence to support addition of these awards to his DD Form 214.

6.  While the available evidence is insufficient for awarding him the BSM or ARCOM, this in no way affects his right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding to item 26 of his 26 February 1968 DD Form 214 the KDSM and the AFEM.

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 adding the BSM, ARCOM, or AGCM.



      _____________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)                                         AR20110006163



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ABCMR Record of Proceedings (cont)                                         AR20110006163



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