IN THE CASE OF:	   

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140017490 


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 his dates of service in the Republic of Vietnam and the awards and decorations to which he is entitled for that service.

2.  The applicant states that the awards and time served are not shown on his DD Form 214.

3.  He provides a:

* Summarized Record of Trial for a Special Court-Martial
* a psychological evaluation rendered by a psychologist at a Department of Veterans Affairs (VA) outpatient clinic

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 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 into the Army of the United States on 12 July 1967.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of his separation.

3.  His record contains a DA Form 20 (Enlisted Qualification Record) which shows in:

	a.  item 29 (Qualification in Arms) shows he qualified as a Marksman with the M-60 machine gun and the M-16 rifle;

	b.  item 31 (Foreign Service), he served in the Republic of Vietnam from 11 March 1968 through 20 April 1969;

	c.  item 38 (Record of Assignments), while in Vietnam he was assigned to:

		(1)  Company C, 1st Battalion (Airborne), 506th Infantry Regiment from 11 March 1968 through 9 January 1969 and from 27 January 1969 through 10 February 1969; and 

		(2)  as a prisoner in the U.S. Army Correctional Hold Detachment, U.S. Army Vietnam, from 11 February through 19 April 1969.

	d.  item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequ3ent to Normal Expiration Term of Service) that he had nine periods of absence without leave (AWOL) and confinement to include a period of confinement from 11 February to 19 April 1969.

4.  His record also contains a DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) which shows he was convicted by special court-martial on two occasions as follows:

	a.  Special Court-Martial Order (SPCMO) Number 61 shows he was found guilty of violating Articles 113 and 134 of the Uniform Code of Military Justice (UCMJ) by:

		(1)  being found sleeping on his post on or about 2 September 1968; and

		(2)  breaking restriction on or about 6 September 1968.
	b.  SPCMO Number 4 shows he was found guilty of two specifications of violating Article 86 by being AWOL:

		(1)  from 7 to 17 November 1968; and

		(2)  from 2 December 1968 to 27 January 1969.

5.  On 5 April 1969, the applicant's unit commander notified him of his intention to recommend that the applicant be separated from the Army under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unsuitability.  The basis for this recommendation was the applicant's past history of commissions of court-martial offenses which included sleeping on his guard post, breaking restrictions, and two periods of extended AWOL.  The applicant acknowledged receipt of this notification and that he had been advised by counsel of the basis for contemplated action to accomplish his separation for unsuitability.

6.  On 22 April 1969, he was separated with a general discharge under honorable conditions.  The DD Form 214 issued to the applicant at the time of his separation shows in:

	a.  item 22c (Foreign and/or Sea Service) that he was credited with completing 8 months and 26 days of foreign service, but does not indicate where he served.

	b.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the:

* Purple Heart
* Air Medal
* Bronze Star Medal
* Army Commendation Medal
* Combat Infantryman Badge

	c.  Item 30 (Remarks) does not show the location and specific dates of the applicant's foreign service.

7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) 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 showing he was awarded any additional awards or decorations.
8.  The applicant provides:

	a.  the Summarized Record of Trial for the Special Court-Martial that resulted in the issuance of the aforementioned SPCMO Number 4.

	b.  a psychological evaluation rendered by a psychologist at a VA outpatient clinic which shows he was diagnosed and treated for post-traumatic stress disorder and mixed personality disorder, with an immature and impulsive behavior.

9.  References:

	a.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.  Appendix B shows that the following five campaigns took place during his period of service in the Republic of Vietnam:

* TET Counteroffensive
* Vietnam Counteroffensive Phase IV
* Vietnam Counteroffensive Phase V
* Vietnam Counteroffensive Phase VI
* TET 69 Counteroffensive, 23 February 1969 to 8 June 1969

	b.  Department of the Army General Orders (DAGO) Number 52, dated 1972, announced award of the Valorous Unit Award to the applicant's unit for actions during his period of assignment.

	c.  DAGO Number 32, dated 1973, announced award of the Meritorious Unit Commendation to the applicant's unit for actions during his period of assignment.

	d.  DAGO Number 43, dated 1970, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the applicant's unit for actions during his period of assignment.

	e.  DAGO Number 48, dated 1971, announced award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the applicant's unit for actions during his period of assignment.

	f.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated for item 22c, enter the total period of active duty served outside of the continental limits of the United States for the period covered by the DD Form 214 and to enter the last overseas theater (e.g., U.S. Army Pacific (USARPAC)) in which the service was performed.

	g.  Change Number 15 to Army Regulation 635-5, effective 15 March 1972, changed the regulation to indicate Indochina and Korea service on or after 5 August 1964 by entering inclusive dates for Vietnam and indicating "yes" or "no" for service in Indochina and Korea.  Where the record reflects assignment to an organization in Burma, Laos, Thailand, Cambodia, or Vietnam, show "yes" for Indochina.  For example, to show service in Vietnam only, enter "Vietnam – 6 Apr 70 through 28 May 71, Indochina – Yes, Korea – No."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to have merit.

2.  Evidence shows the applicant qualified as a Marksman with the M-60 machine gun and the M-16 rifle.  Therefore, it would be appropriate to correct his DD Form 214 to show award of the Marksman Marksmanship Qualification Badge with Machine Gun Bar (M-60) and Rifle Bar (M-16) to show these marksmanship badges

3.  Records show five campaigns took place during the applicant's tenure in the Republic of Vietnam.  However, he was in confinement during the entire period of his presence there during the fifth campaign.  Therefore, he can only be credited with participation in four of the campaigns.  As a result, he is entitled award of the Vietnam Service Medal with 4 bronze service stars and correction of his DD Form 214 to show this service medal.

4.  DAGOs awarded the following unit awards to the applicant's units for actions during his period of assignment; therefore, he is entitled to correction of his DD Form 214 to show these unit awards:

* Valorous Unit Award
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

5.  Although the applicant's duration of foreign service in the RVN, minus time lost due to AWOL and confinement, was properly annotated in item 22c of his DD Form 214, it does not show he completed this service in USARPAC.  Additionally, item 30 does not show the location and specific dates of the applicant's foreign service.

6.  Although it was not until March 1972 that change number 15 to Army Regulation 635-5 authorized an entry on the DD Form 214 to indicate Indochina and Korea service on or after 5 August 1964.  There is no harm in adding his service in the RVN during the period 11 March 1968 through 20 April 1969, minus lost time during the periods 7 to 16 November 1968, 2 December 1968 to 26 January 69, and 11 February to 19 April 1969 to his DD Form 214.  This lost time was also subtracted from his total tenure in Vietnam which resulted in him only being credited with successful completion of 8 months and 26 days of foreign service.

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:

	a.  adding the entry "USARPAC" to item 22c of his DD Form 214;

	b.  adding the following to item 24 of his DD Form 214:

* Vietnam Service Medal with 4 bronze service stars
* Valorous Unit Award
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Marksman Marksmanship Qualification Badge with Machine Gun Bar (M-60) and Rifle Bar (M-16)

	c.  adding the entry "Vietnam – 11 March 1968 through 20 April 1969 (minus lost time during the periods 7 to 16 November 1968, 2 December 1968 to 26 January 69, and 11 February to 19 April 1969) Indochina – Yes, Korea – No" to item 30 of 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)                                         AR20140017490





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ABCMR Record of Proceedings (cont)                                         AR20140017490



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