IN THE CASE OF:	  

		BOARD DATE:  6 March 2012

		DOCKET NUMBER:  AR20110018039 


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 (REFRAD) in the rank of sergeant (SGT) E-5 and by adding his awards of the Combat Infantryman Badge (CIB), Vietnam Service Medal (VSM) and the Republic of Vietnam Campaign Medal (RVNCM). 

2.  The applicant states that he was promoted to the rank of SGT while he was hospitalized at Letterman General Hospital in San Francisco for over 8 months and his awards of the CIB, VSM and the RVNCM were omitted from his 
DD Form 214.

3.  The applicant provides no additional documents with his application.

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 Los Angeles, California, on 12 March 1968.  He completed his basic training and his advanced individual training as a wireman at Fort Ord, California, and was transferred to Vietnam on 29 August 1968.

3.  He was assigned to the 298th Signal Platoon, 199th Infantry Brigade for duty as a wireman.  The applicant served in two campaigns before he injured his ankle and was evacuated to Camp Zama, Japan, on 30 November 1968.  He was subsequently transferred to Letterman General Hospital.

4.  On 12 April 1969 he was assigned to Fort Ord, California, and on 18 August 1969 he was assigned to Fort Irwin, California.  He was promoted to the rank of SGT/E-5 on 28 November 1969.

5.  On 18 January 1970 he was honorably REFRAD to attend school.  He had served 1 year, 10 months and 7 days of active service of which 3 months and 
5 days were served overseas.  His DD Form 214 issued at the time of his REFRAD shows that he was REFRAD in the rank and pay grade of SP4/E4 with a date of rank of 19 July 1969 and that he was awarded the National Defense Service Medal.

6.  A review of his records shows that he was awarded the VSM.  His records contain no evidence of his being awarded the CIB or the RVNCM.  However, his records do show that he had excellent conduct and efficiency ratings throughout his service and his records contain no evidence of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM). 

7.  Army Regulation 600-8-22 states the RVNCM with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Individuals who qualified for award of the Vietnam Service Medal are also entitled to award of the RVNCM with Device (1960) who served for less than 6 months of service but:

* were wounded as a result of hostile action 
* were captured by hostile forces but later escaped or were rescued or released
* were killed in action or otherwise in line of duty

8.  Army Regulation 600-8-22 (Military Awards) states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  

9.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM 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.

10.  Army Regulation 600-8-22 states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

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 cited for the Meritorious Unit Commendation (MUC), the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his period of assignment to the unit.

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 he was serving in the rank of SGT E-5 at the time of his REFRAD has been noted and found to have merit.  He was promoted to the rank of sergeant E-5 on 28 November 1969 and his records should be corrected accordingly. 
2.  The applicant was also awarded the VSM and it was omitted from his 
DD Form 214 at the time of his REFRAD.  Additionally, he served in two campaigns and is entitled to have two bronze service stars added to his award of the DD Form 214.  Accordingly, the VSM with two bronze service stars should be added to his DD Form 214.   

3.  After carefully examining the applicant’s record of service, it appears that the applicant should have received the first award of the AGCM for his service from 12 March 1968 through 18 January 1970.  This conclusion is based on the fact that his record is void of any derogatory information which would preclude the applicant from being awarded the AGCM and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving this award.  The evidence further suggests that the applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of his unit commanders.  Therefore, in the interest of justice, this error should be corrected by awarding the applicant the AGCM (1st Award) and correcting his DD Form 214 to show this award.

4.  The applicant’s unit was awarded the MUC, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation during his period of assignment.  Therefore, his DD Form 214 should be corrected to show these unit awards.

5.  However, the applicant did not possess an infantry military occupational specialty and was not assigned to an infantry company in Vietnam.  Accordingly, he was then and is not now entitled to award of the CIB.

6.  Additionally, he did not serve in Vietnam for a qualifying period for award of the RVNCM and therefore is not entitled to that award.

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:

* Deleting the entries “SP4 E-4” from blocks 5a and 5b of his DD Form 214
* Adding the entry “SGT E-5” in blocks 5a and 5b of his DD Form 214
* Deleting the entry “19 Jul 1969” from block 6 of his DD Form 214
* Adding the entry “28 Nov 1969” to block 6 of his DD Form 214
* Awarding the applicant the AGCM (first award) for the period 12 March 1968 through 18 January 1970 and adding it to block 24 of his 
DD Form 214
* Adding the awards of the VSM with two bronze service stars, the MUC, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation to block 24 of 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 adding awards of the CIB and the RVNCM to his DD Form 214.  

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20110018039





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ABCMR Record of Proceedings (cont)                                         AR20110018039



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