IN THE CASE OF:	  

	BOARD DATE:	  03 July 2008

	DOCKET NUMBER:  AR20070013848 


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 that his Report of Transfer or Discharge (DD Form 214) dated 19 March 1972, and his Certificate of Release or Discharge from Active Duty (DD Form 214) dated 1 December 1985, be corrected to show that he was awarded the Silver Star, the Soldier's Medal, the Air Medal, and the Purple Heart.

2.  The applicant states that during his term of service in the Army from 5 September 1969 through 19 March 1972, awards orders were placed in his main 201 File and not in his field 201 File.  He states that these award orders were also not placed in his field 201 File for his period of service from 17 November 1975 through 1 December 1985.

3.  The applicant provides no additional documentation in support of his application.

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.  On 1 May 1969, the applicant was inducted into the Army in Indianapolis, Indiana.  He successfully completed his training as an armor crewman.  He reenlisted in the Army on 5 September 1969.

3.  After competing 2 years, 10 months, and 19 days of total active service the applicant was honorably released from active duty (REFRAD) on 19 March 1972 and he was transferred to the United States Army Reserve Control Group (Reinforcement).  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Bronze Star Medal, the Army Commendation Medal, the Armed Forces Expeditionary Medal, and the Marksman Marksmanship Qualification Badge (Rifle M-16).

4.  The applicant reenlisted in the Army on 17 November 1975 and he successfully completed his training as a cannon crewman.

5.  On 1 December 1985, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 4, at the expiration of his term of service.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the Expert Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars, the National Defense Service Medal, the Army Service Ribbon, two Overseas Service Ribbon, the Vietnam Service Medal, the Armed Forces Expeditionary Medal, the Bronze Star Medal (First Oak Leaf Cluster), the Combat Infantryman Badge, the Army Commendation Medal (First Oak Leaf Cluster), the Army Achievement Medal, and the Army Good Conduct Medal (Second Award).

6.  A review of the available record fails to show that the applicant was ever wounded as a result of hostile action by enemy forces while he was in the Army.  Further review of the available record does not show that orders were ever published awarding him the Silver Star, the Soldier's Medal, the Air Medal, or the Purple Heart.

7.  Army Regulation 600-8-22 (Military Awards) 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.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  

11.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or 

awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  However, there is no evidence in the available record, nor has the applicant submitted any evidence, to support his contentions that he met the criteria for and was awarded the Silver Star, the Soldier's Medal, the Air Medal, and the Purple Heart.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.  Therefore, there is no basis for correcting either of the applicant's DD Forms 214.

2.  A review of the applicant's record does not show that orders were ever published awarding him the Silver Star, the Soldier's Medal, the Air Medal, or the Purple Heart.

3.  While the available evidence is insufficient for awarding the applicant a Silver Star, Soldier’s Medal, or Air Medal, this in no way affects the applicant’s right to pursue his claim for the Silver Star, Soldier’s Medal, and the Air Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20070013848



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ABCMR Record of Proceedings (cont)                                         AR20070013848



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