IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120001578 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge.

2.  The applicant states he was a forward observer for Company E, 2nd Battalion, 35th Infantry Regiment, 4th Infantry Division, Vietnam, which was an E-5 slot.  He never received his medals but his daughter got his Purple Heart for him last year.  His DD Form 214 does not show the Combat Infantryman Badge.

3.  The applicant provides his DD Form 214 and orders.

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 applicants records show he was inducted into the Army of the United States on 5 August 1969 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He served in Vietnam from 23 March to 13 July 1970 while assigned to Company E, 2nd Battalion, 35th Infantry Regiment.

3.  General Orders Number 125, dated 29 July 1970, issued by Headquarters, 17th Field Hospital, Vietnam, awarded him the Purple Heart for wounds received by hostile forces in Vietnam on 19 June 1970.

4.  He was subsequently medically evacuated from Vietnam and on 14 July 1970 he was assigned as a patient to the U.S. Army Hospital, Fort Campbell, KY, where he was treated for his wounds sustained in Vietnam on 19 June 1970.  The examining physician noted he sustained an AK-47 gunshot wound with an open fracture of the right ulna and injuries to the radial, median, and ulnar nerves in addition to the soft tissue and skin loss of the forearm.

5. On 7 April 1971, a Physical Evaluation Board (PEB) was convened at Fort Gordon, GA, and his disability of the loss of use of his right hand was found unfitting.  His disability was rated at 70 percent and the PEB recommended he be placed on the temporary disability retirement list (TDRL).

6.  He was retired from active duty in the rank of specialist four on 11 June 1971 and placed on the TDRL.  He completed 1 year, 10 months, and 7 days of creditable active service with no time lost.

7.  The DD Form 214 he was issued shows the:

* National Defense Service Medal
* Vietnam Service Medal 
* Vietnam Campaign Medal
* Purple Heart
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

8.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not show award of the Combat Infantryman Badge.  His records do not contain orders awarding him the Combat Infantryman Badge.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Combat Infantryman Badge is awarded to infantry officers, 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.

10.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he received all "excellent" conduct and efficiency ratings throughout his service except for the period from 9 January to 2 February 1970 when he received "unknown."  His record is void of any record of disciplinary actions or a commander's disqualification for the first award of the Army Good Conduct Medal.

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal 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.

12.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance for the Vietnam Service Medal.  It states a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  A review of his records shows that during his service in Vietnam he participated in three campaigns.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 2nd Battalion, 35th Infantry, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 29 July 1969 through 17 November 1970 by Department of the Army General Order (DAGO) Number 52, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant held an infantry MOS and was assigned to an infantry unit.  His award of the Purple Heart on 19 June 1970 confirms he served in active ground combat with enemy forces while in Vietnam.  Therefore, he is entitled to award of the Combat Infantryman Badge and correction of his DD Form 214 to show this award.

2.  The evidence of record shows he served honorably from 5 August 1969 through 11 June 1971.  He served in Vietnam and received all "excellent" conduct and efficiency ratings throughout his military service except for a 30 day period when he received an "unknown" rating.  His record is void of any disciplinary actions or a commander's disqualification that would have precluded him from receiving the first award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award him the Army Good Conduct Medal (1st Award) and to correct his DD Form 214 to show this award.
3.  His record confirms he participated in three campaigns while serving in 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 accordingly.

4.  His unit in Vietnam was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his period of assignment.  Therefore, his DD Form 214 should be corrected to show this unit award.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 as follows:

* awarding him the Combat Infantryman Badge, effective 19 June 1970
* awarding him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 5 August 1969 through 11 June 1971
* deleting the Vietnam Service Medal
* adding the:

* Combat Infantryman Badge
* Army Good Conduct Medal (1st Award)








* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation



      __________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)                                         AR20120001578





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001578



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1