RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013232 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Paul Wright

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests in two separate applications award of the Legion of Merit and a US award equal to the Republic of Vietnam Gallantry Cross with Bronze Star.

2.  The applicant states the Legion of Merit order may not have been submitted through the proper channels for inclusion in his Official Military Personnel File (OMPF).  He additionally states he feels it is unjust for foreign country to recognize his unselfish efforts to expose himself to the enemy to protect friendly forces and his own country does not acknowledge his devotion to duty.  Further he adds his Bronze Star Medal was awarded for a different circumstance and not for the event for which the Republic of Vietnam Gallantry Cross with Bronze Star was issued.

3.  The applicant provides a copy of Permanent Orders Number 136-4, Headquarters, US Army Training and Doctrine Command, dated 19 December 1983, awarding the Legion of Merit; copies of the original documents and a translation for the Republic of Vietnam Gallantry Cross with Bronze Star; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 31 January 1984.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 January 1984.  The application submitted in this case is dated 
2 September 2006.

2.  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.  However, based on decisions of the U.S. Court of Appeals, the ABCMR has adopted the policy of calculating its 3-year statute of limitations from the date of final action in those requests wherein an applicant has sought a lower level administrative remedy.  Requests for awards submitted under Title 10, United States Code, Section 1130 (10 USC 1130) to the Army Decorations Board are considered a lower level administrative remedy.  Since there is no statute of limitations on filing requests for awards under 10 USC 1130, the ABCMR has determined that the 3-year statute of limitations for filing with ABCMR should commence on the date of final action on an award request by the Army Decorations Board.

3.  On 5 August 1957, the applicant was inducted into the Army of the United States for a period of two years.  He served on active duty continuously until he was honorably retired for length of service on 31 January 1984.  His retirement rank was Sergeant Major.

4.  The applicant served twice in Vietnam.  His first tour was from 29 July 1968 through 24 August 1969 and his second tour was  from 6 March 1972 through 23 November 1972.

5.  Permanent Orders Number 136-4, dated 19 December 1983, published by Headquarters, US Army Training and Doctrine Command, Fort Monroe, Virginia awarded the Legion of Merit to the applicant for the period 31 January 1974 to 31 January 1984 for exceptionally meritorious conduct in the performance of outstanding service.

6.  US Army Vietnam (USARV) Regulation Number 672-2 (Foreign Awards and Decorations) provided for processing of foreign awards and decorations presented to individuals and units.  This regulation, in pertinent part, governed award of the Republic of Vietnam Gallantry Cross as a personal decoration.  This decoration is awarded to personnel who have conducted themselves with heroic action and have displayed deeds of valor while fighting the enemy.  The more gallant and noteworthy the act, the higher the level of the award.  The Gallantry Cross is issued in four degrees, with a basic medal followed by higher degrees which are the equivalent of personal citations on an organizational level (also known as having been "mentioned in dispatches").  The degrees of the Gallantry Cross are as follows:  Gallantry Cross with Palm (Individual Award); Gallantry Cross with Bronze Star (Regiment or Brigade citation); Gallantry Cross with Silver Star (Division citation); Gallantry Cross with Gold Star (Corps citation).  Approval to accept and to wear a personal award of the Republic of Vietnam Gallantry Cross required approval by the Commanding General of United States Army Vietnam.  As with all foreign awards, each recipient of an approved foreign award was provided a copy of the original citation from the foreign government, a translation of the citation if necessary, and a letter authorizing the recipient to receive and wear the decoration.

7.  On 28 April 1982, the Military Awards Branch, Department of the Army Personnel Command (now known as the US Army Human Resources Command, Alexandria, VA) gave the applicant authorization to accept and wear the Republic of Vietnam Gallantry Cross with Bronze Star.


8.  The applicant believes the US Army should have recognized his service with a US award equivalent to the Republic of Vietnam Gallantry Cross with Bronze Star.  He intimates that a Bronze Star Medal for Valor should have been awarded to him.  There are no orders or other evidence which shows the applicant was recommended for, or awarded, the Bronze Star Medal for Valor.  In the absence of a proper authority for these decorations, the applicant may request award of the Bronze Star Medal for Valor under the provisions of Section 1130 of Title 10, United States Code.  Section 1130 provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester.  The applicant has been notified by separate correspondence of the procedures for applying for these decorations under Section 1130 and, as a result, they will not be discussed further in this Record of Proceedings.

9.  The applicant's MicroFiche records had copies of his Legion of Merit orders and the official approval and authorization for him to accept and wear the Republic of Vietnam Gallantry Cross with Bronze Star.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 for the period ending 31 January 1984 does not show the award of the Legion of Merit or the Republic of Vietnam Gallantry Cross with Bronze Star.  This DD Form 214 and those of his prior periods of service show that he has been given all other authorized awards to which he is entitled.

2.  Permanent Orders show the applicant is entitled to award of the Legion of Merit.  Therefore, he is entitled to a correction of his records to reflect this award and to have it added to his DD Form 214.


3.  Official authorization along with documents and certificate show the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Bronze Star.  Therefore, he is entitled to a correction of his records to show award of this foreign award and to have it added to his DD Form 214.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 January 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 January 1987.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__klw___  __lmd___  __eif___  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Legion of Merit and the Republic of Vietnam Gallantry Cross with Bronze Star to his DD Form 214 of 31 January 1984.




						Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060013232
SUFFIX

RECON

DATE BOARDED
20070410
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
107.0009
2.

3.

4.

5.

6.