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Decision Text

ARMY | BCMR | CY1997 | 9710865
Original file (9710865.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his military records be corrected to reflect award of two Silver Stars. He states, in effect, that he was awarded the two Silver Stars while in Vietnam but that his records were subsequently lost.
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 applicant's military records show:

He served an initial period of active duty between 1957 and 1959 and reenlisted in October 1961. He was assigned to Vietnam on three occasions (6706-6806, 6911-7007, 0371-7202). During his second tour of duty in Vietnam (6911-7007) he was awarded the Combat Infantryman Badge. He was also awarded a Purple Heart and Bronze Star Medal with “V” for actions on 29 January 1970.

Separation documents (DD Forms 214), rendered in 1968 and 1974 upon the applicant’s reenlistment, and his final DD Form 214, issued upon his retirement in 1979, do not reflect entitlement to any Silver Stars. The applicant authenticated each of the separation documents. Additionally, item 9 (awards and decorations) on his DA Form 2-1 (personnel qualification record), which the applicant authenticated in 1979, does not reflect award of the Silver Star.

The applicant’s records indicate he inquired about replacing his Purple Heart and Bronze Star Medal with “V” device in 1984. He did not, however, mention anything about award of the Silver Star.

Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. There is no evidence, and the applicant has not provided any, which confirms he was ever recommended for, or awarded, the Silver Star.

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
31 October 1979, the date the applicant was separated from active duty. The time for the applicant to file a request for correction of any error or injustice expired on
31 October 1982.

The application is dated 29 March 1996 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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