APPLICANT REQUESTS: That the records of her spouse, a deceased former servicemember be upgraded to reflect award of the Silver Star and Bronze Star Medal. She notes that her spouses Silver Star recommendation was downgraded to an Army Commendation Medal with V device and that his Bronze Star Medal for meritorious service was downgraded to an Army Commendation Medal for service. She believes the awards were downgraded because they failed to mention that he was wounded during the action which resulted in award of the Army Commendation Medal with V device.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The former servicemembers military records show:
He was commissioned and entered active duty in June 1973 after graduating from the United States Military Academy. He arrived in Vietnam on 12 September 1967 and was assigned with the 5th Special Forces Group.
As a result of his heroic actions on 23 August 1968 he was awarded an Army Commendation Medal with V device. The award citation notes that enemy forces had penetrated the perimeter of the Command and Control Detachment North Compound and that the former servicemember exposed himself to hostile enemy fire to transport wounded soldiers to the dispensary, then set up a defensive perimeter around the dispensary and began evacuating patients from the dispensary to safety. He then shifted his forces to meet an enemy attack from the east and successfully halted the attack forcing the enemy to withdraw. An evaluation report rendered for the period in question also commended the former servicemembers actions on 23 August, noting that he drove a 1/4 ton vehicle through the compound carrying wounded personnel to the aid station while exposing himself to automatic weapons fire at close range. Orders awarding the Army Commendation Medal with V device were published on 2 December 1968. Orders awarding the former servicemember the Purple Heart for wounds sustained on 23 August 1968 were published on 10 September 1968. Both orders were published by the 5th Special Forces Group. There is no evidence the former servicemember was ever recommended for award of the Silver Star.
The former servicemember was awarded the Army Commendation Medal for meritorious service during the period 10 September 1967 through 10 September 1968. A letter included in his records notes the Army Commendation Medal was awarded in lieu of the Bronze Star Medal when, after careful evaluation, it was determined that his action was distinguished and deserving of recognition but that it did not meet the standards for award of the Bronze Star Medal.
On 1 March 1978 the former servicemember was released from active duty. He continued to actively serve in various reserve components until he was transferred to the USAR Control Group (retired) in 1986. He died on 27 March 1994 at the age of 56 as the end stages of liver disease.
Army Regulation 600-8-22 states that no individual is automatically entitled to an award and the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority. The fact that the former servicemember was wounded during a specific action would not automatically insure a higher decoration was awarded and does not serve as a basis to conclude that an error or injustice occurred at the time his awards were processed.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 March 1978, the date the former servicemember was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 1 March 1981.
The application is dated 28 October 1994 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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