IN THE CASE OF: BOARD DATE: 29 July 2010 DOCKET NUMBER: AR20100008105 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 through his Member of Congress that the records of his deceased brother, a former service member (FSM), be corrected to show award of the Presidential Unit Citation. 2. The applicant states his brother served with Company C, 158th Aviation Battalion, in Vietnam. He was killed in action on 8 February 1971. His unit of assignment was awarded the Presidential Unit Citation for heroism from 8 February 1971 to 24 March 1971. 3. The applicant provides the following documents: * various letters from and to his Member of Congress * the FSM's DD Form 1300 (Report of Casualty) * a copy of his birth certificate * a copy of the FSM's birth certificate * a copy of a certificate showing award of the Purple Heart * a copy of a certificate showing award of the Distinguished Flying Cross 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. Having completed the Warrant Officer Candidate School, the FSM's records show he was appointed as a Reserve warrant officer and executed an oath of office on 13 July 1970. 3. On 12 August 1970, the FSM was assigned to Company C, 158th Aviation Battalion, 101st Airborne Division, as a helicopter pilot. 4. The FSM was killed in action on 8 February 1971 while flying a combat assault mission in Laos when his aircraft was shot down. 5. The FSM's records show he was awarded the Distinguished Flying Cross (Posthumous), Bronze Star Medal (Posthumous), Air Medal (2nd through 11th Award) (Posthumous), Purple Heart, National Defense Service Medal, Army Good Conduct Medal, Army Aviator Badge, Vietnam Service Medal, Vietnam Campaign Medal, and Army Commendation Medal. 6. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during his assignment to the 158th Aviation Battalion, this unit was awarded the following awards: * Presidential Unit Citation for service from 8 February 1971 to 24 March 1971 based on Department of the Army General Orders (DAGO) Number 13, dated 1974 * Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974 * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 30 October 1970 to 7 December 1970 based on DAGO Number 11, dated 1973 7. A review of the FSM's records indicates his entitlement to additional awards which are not shown on his records. 8. Item 23 (Qualifications in Arms) of the FSM's DA Form 66 (Officer Qualification Record) shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.38 caliber). 9. Appendix B of Army Regulation 600-8-22 (Military Awards) shows participation credit was awarded for the Vietnam Counteroffensive Phase VII campaign from 1 July 1970 to 30 June 1971 during the FSM's tour of duty in the Republic of Vietnam. This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his late brother's records should be corrected to show award of the Presidential Unit Citation. 2. General orders awarded the FSM's unit the Presidential Unit Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards. 3. Special orders awarded the FSM the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.38 caliber). Therefore, he is entitled to receipt of these badges. 4. The evidence of record shows the FSM was awarded the Vietnam Service Medal. Additionally, records show he participated in one campaign while serving in the Republic of Vietnam. Therefore, he is entitled to award of a bronze service star to be affixed to his already-awarded Vietnam Service Medal. 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 showing the FSM is entitled to the following awards: * Presidential Unit Citation * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.38 caliber) * one bronze service star to be affixed to his already-awarded Vietnam Service Medal. ____________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) AR20100008105 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100008105 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1