IN THE CASE OF:	  

	BOARD DATE:	  8 May 2008

	DOCKET NUMBER:  AR20070016793 


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 award of the Air Medal for his service in the Republic of Vietnam.

2.  The applicant states that he should receive the Air Medal for meritorious achievement while participating in aerial flight.  He further states that he served with another Soldier in the same unit who received the Air Medal.

3.  The applicant provides copies of General Orders that awarded the Air Medal to one of his comrades, and his certificates for award of the Purple Heart, Bronze Star with "V" Device, and the Army Commendation Medal.

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 20 April 1966, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 24 June 1966, the applicant was assigned as an infantryman with the 3rd Battalion, 39th Infantry Regiment, 9th Infantry Division, at Fort Lewis, Washington.

4.  On 12 December 1966, the applicant went with his unit to the Republic of Vietnam.  

5.  On 12 June 1967, the applicant was assigned duty as a door gunner. 
He performed these duties until his return to the United States on 
30 November 1967.

6.  On 19 April 1968, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of specialist four, pay grade E-4 and had completed 2 years of creditable active duty.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, as previously corrected, lists his awards as the National Defense Service Medal, Bronze Star Medal with "V" Device, Purple Heart, Army Commendation Medal, Army Good Conduct Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Air Medal.

8.  There is no available evidence in the applicant’s records or on the Awards and Decorations Computer Assisted Retrieval System (ADCARS) showing that he was awarded an Air Medal. 

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  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.

11.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 39th Infantry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders (DAGO) Number 31, dated 1969, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and in DAGO Number 43, dated 1970, for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  While the available evidence is insufficient for awarding the applicant an Air Medal this in no way affects the applicant’s right to pursue his claim for the Air Medal by submitting a request through his/her Member of Congress under the provisions of 10 USC §1130.

2.  Records show that the applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, his records should be corrected to show these foreign unit awards.   

3.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing that in addition to the awards shown on his DD Form 214, his awards include the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  




      __________X_____________
      	 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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070016793



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1