RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070016923 


	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.









      The following members, a quorum, were present:













	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, that he be awarded the Silver Star (SS) with Oak Leaf Cluster, Bronze Star Medal (BSM) with 2nd Oak Leaf Cluster, and Army Commendation Medal (ARCOM) with 3rd Oak Leaf Cluster.  

2.  The applicant states, in effect, that as an infantry scout dog handler, he walked point with almost every unit in the two Corps he was assigned to in the Republic of Vietnam (RVN).  He claims that he was recommended for multiple awards of the SS, BSM, ARCOM, and PH, some of which were for valor.  He also states that he flew more than eighty combat assault missions while performing duties as a door gunner, and states that he was blown away by a hand grenade, captured by enemy forces, and escaped within 48 hours.  He now states that forty years later, he has nothing to show for his valorous service and indicates that by his count the Government owes him.

3.  The applicant provides a self authored statement 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.  The applicant’s record show he initially enlisted in the Regular Army and entered active duty on 14 September 1966.  He completed basic training at 
Fort Jackson, South Carolina and advanced individual training (AIT) at 
Fort Benning, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 19 December 1968, the applicant was honorably released from active duty (REFRAD) for the purpose of immediate reenlistment.  The separation document (DD Form 214) issued him at that time confirms he had completed 2 years, 3 months, and 6 days active military service.
4.  The applicant reenlisted on 20 December 1968, 13 December 1974, and on 15 October 1976.  The applicant was issued a DD Form 214 upon the completion of each period of service.  

5.  The Enlisted Qualification Record (DA Form 20) shows that the applicant attained the rank of staff sergeant (SSG) on 3 September 1976, and that this is the highest rank he attained while serving on active duty.  Item 31 (Foreign Service) shows that he served in the RVN from 21 July 1967 to 21 February 1969, and in Germany from 1 February 1971 to 15 November 1973.  A Personnel Qualification Record (DA Form 2-1) prepared on the applicant on 6 August 1974, shows he served in Korea from 6 December 1976 to 4 November 1977.  

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his RVN tour, he was assigned to the 40th Infantry Platoon Scout Dogs, 4th Infantry Division, performing duties in MOS 11B as a scout observer, scout driver and assistant squad leader.  

7.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows that during his active duty tenure, he earned the following awards: National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); PH; RVN Campaign Medal; RVN Gallantry Cross with Palm Unit Citation; and RVN Civil Actions Honor Medal First Class Unit Citation; and 3 Overseas Service Bars.  Item 33 (Reviewed) shows that he last reviewed the record on 4 November 1976.  

8.  The applicant's Official Military Personnel File (OMPF) is void of any orders or documents that indicate the applicant was ever recommended for or awarded the SS, BSM, or ARCOM, or that indicate he ever received an award for heroism (valor).  

9.  On 4 November 1977, the applicant was honorably discharged by reason of disability with severance pay.  The DD Form 214 he was issued at the time shows he completed a total of 11 years, 1 month, and 21 days of active military service.  The list of awards contained in Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not include the SS, BSM, or ARCOM.  It does show that he earned the NDSM, VSM with 1 silver service star and 1 bronze service star, RVN Campaign Medal with Device 1960, PH 1st Oak Leaf Cluster (2nd Award), RVN Gallantry Cross with Palm Unit Citation (2nd Award), CIB and Valorous Unit Award.  The applicant authenticated this document with his signature in Item 29 (Signature of Person Being Separated) on the date of his discharge.  


10.  DD Forms 214 issued to the applicant on 12 December 1974 and 
14 October 1976, also show he earned 3 Overseas Service Bars and the Presidential Unit Citation.  The applicant authenticated both of these separation documents with his signature on the dates they were issued.  

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  The awards regulation requires that a recommendation for award (DA Form 638) be submitted, processed through channels and approved by the proper award approval authority for all individual decorations, which includes the SS, BSM, and ARCOM.  

12.  Paragraph 3-10 of the awards regulation contains guidance on the SS.  It states, in pertinent part, that it is awarded to individuals who are cited for gallantry in action against an enemy of the United States.  Paragraph 3- contains guidance on award of the BSM, and states, in pertinent part, that it is awarded to members who distinguish themselves by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy.  Paragraph 3-16 provides guidance on the  ARCOM and states, in pertinent part, that it may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  An Oak Leaf Cluster is issued for a second or subsequent award of the SS, BSM or ARCOM.   

13.  On 3 February 2004, The Secretary of Defense approved the criteria for the Korea Defense Service Medal (KDSM).  It is authorized to be awarded to members who served on active duty in Korea from 28 July 1954 to a date to be determined.  

14.  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 claim of entitlement to multiple awards of the SS, BSM, and ARCOM has been carefully considered.  However there is insufficient evidence to support this claim.  By regulation, in order to be awarded the SS, BSM, or ARCOM, an award recommendation must be submitted, processed through channels, and approved by the proper awards approval authority.  

2.  The applicant's OMPF is void of any orders or documents that would indicate he was ever recommended for or awarded any of the awards in question by proper authority while serving on active duty.  His DA Form 20 and DA Form 2-1 does not include these awards, and he last reviewed his DA Form 2-1 on 
4 November 1976, more than 7 years after he departed the RVN.  In addition, the awards in question are also not included in the list of awards contained on any of his DD Forms 214, the last of which was issued on 4 November 1977, more than 8 years after he departed the RVN, and all of which he authenticated with his signature on the date they were issued.  

3.  In effect, his review of the DA Form 2-1 and his signature on the DD Forms 214 were the applicant's verification that the information contained in his record and on his separation documents, to include the awards listed, was correct at the time he last reviewed his record and when the separation documents were issued.  Absent any evidence of record that confirms he was ever recommended for or awarded the awards in question by proper authority, the regulatory burden of proof necessary to support awarding him any of the awards in question has not been satisfied.  As a result, there is an insufficient evidentiary basis to grant the requested relief.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

4.  Although there is insufficient evidence to support awarding the applicant the SS, BSM, or ARCOM, this in no way affects the applicant’s right to pursue his claim for these awards by submitting a request, with all award recommendations and supporting evidence, through a Member of Congress under the provisions of 10 USC 1130; an option he may still wish to pursue.  


5.  The evidence does show he is entitled to the KDSM for his service in 
Korea.  The omission of this award from his record and separation document is an administrative matter that does not require Board action.  Therefore, the 
Case Management Support Division (CMSD), St. Louis, Missouri, will administratively correct his record as outlined in paragraph 2 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx    __  __xxx    _  __xxx  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Silver Star, Bronze Star Medal, or Army Commendation Medal.  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 to show his entitlement to the Korea Defense Service Medal; and by providing him a correction to his final separation document that includes this award.  




      _____xxx          _______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070016923


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508