RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070012030 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter 

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 effect, award of the Silver Star; the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Meritorious Unit Commendation.

2.  The applicant states, in effect, that he did not receive a Silver Star and other awards due to clerical error. 

3.  The applicant provides an additional statement, from a former service member, an Army chief warrant officer (CWO), of the 299th Combat Engineer Battalion, during Vietnam in 1969.  The CWO stated that during his stay he recommended Soldiers for medals and that there was a company clerk who had a bad attitude about personnel who were involved in combat actions.  He was unable to check why medals were not issued due to combat activities and rotations.  He was informed that paper work took a long time.  It was his belief that this clerk never processed the paper work for these medals.  He concluded that because he found that these medals had not been issued, he was writing this statement in support of the applicant, as a member of the 299th Combat Engineer Battalion, for award of the Silver Star. 

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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.  The applicant requested correction of his records to show award of the Silver Star.  There is no evidence in the available records to show he was recommended for or awarded the Silver Star.  Section 1130, Title 10, United States Code, 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 applicant has been notified by separate correspondence of the procedure for applying for award of the Silver Star under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.

3.  The applicant's record shows he was inducted into the Army of the United States on 16 July 1968.  He successfully completed basic combat training at Fort Benning, Georgia, and advanced individual training at Fort McClellan, Alabama.  On completion of his advanced training, he was awarded the military occupational specialty (MOS) 12B (Combat Construction Specialist).  

4.  The applicant was promoted to pay grade E-5 on 18 December 1969.  He served in Vietnam from 20 December 1968 to 19 December 1969.  He served until he was released from active duty on 15 July 1970.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged from the USAR on 1 July 1974.

5.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; the Vietnam Service Medal, with two bronze service stars; the Republic of Vietnam Campaign Medal; the Army Commendation Medal; the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar; and the Expert Marksmanship Qualification Badge, with Machinegun Bar (M-60).  His DD Form 214 does not show any additional awards.

6.  Item 38 (Record of Assignments), of his DA Form 20 (Enlisted Qualification Record), shows that the applicant was assigned to Company D, 299th Engineer Battalion, while serving in Vietnam.


7.  The applicant’s records contain a copy of a DD Form 215 (Correction to DD Form 214), dated 17 February 2004, which shows he was awarded the  Valorous Unit Award; the Vietnam Service Medal, with four bronze service stars; and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

8.  The applicant's records also contain a second DD Form 215, dated 26 January 2007, which shows he was also awarded the Purple Heart and the Good Conduct Medal.

9.  Department of the Army Pamphlet 672-3 indicates that the applicant's unit, Company D, 299th Engineer Battalion, was not cited for award of the Republic of Vietnam Civil Actions Honor medal, First Class, Unit Citation, or the Meritorious Unit Commendation, for actions during the period 20 December 1968 to 19 December 1969, while serving in Vietnam.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records have already been corrected to show award of the requested Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, there is no further action required on this issue.

2.  The evidence of record shows that the applicant’s unit was not cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation or the Meritorious Unit Commendation for actions during the period 20 December 1968 to 19 December 1969, while serving in Vietnam.  Therefore, he is not entitled to correction of his records to show these unit awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_DKH___  ___JRH__  ___EM__  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




____David K. Haasenritter ____
          CHAIRPERSON




INDEX

CASE ID
AR20070012030
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080125
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700715
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.