RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070017262 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his separation document be corrected to show the Army Good Conduct Medal (AGCM), Korean War era medals, Vietnam War era medals, Senior Aviator Badge, and Distinguished Flying Cross (DFC).

2.  The applicant states that while working on the ballistic missile program in Alaska, his aircraft had a five million watt overload which could have caused the gas tank to explode or sterilize him.  Despite the risk, he continued to fly the mission since time was of the essence.  He was told when he landed that he would be recommended for the DFC.

3.  The applicant provides selected extracts from his military records.

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 military records show that he enlisted in the Regular Army on 28 October 1957.  He was awarded the military occupational specialty of light weapons infantryman, served at Fort Rucker, Alabama, and was promoted to pay grade E-5.  He was honorably discharged on 15 January 1959 to accept an appointment as a warrant officer.

3.  The applicant served continuously on active duty as a warrant officer, being awarded the military occupational specialty of Army Aviator, and was promoted to Chief Warrant Officer 2.  He served in Greenland, Alaska, and Europe.  He was honorably released from active duty and transferred to the US Army Reserve Control Group (Reinforcement) on 24 December 1964.  The DD Form 214 he was issued shows that he was awarded the Army Aviator Badge and Air Medal.

4.  The applicant’s DA Form 66, Officer Qualification Record, shows that he was awarded the Army Aviator Badge, the AGCM, the Expert Infantryman Badge, and the Air Medal.  This form also shows that the applicant qualified expert with the .45 caliber pistol.

5.  The applicant’s DA Form 759, Individual Flight Record – Army Aviator, shows that he had a total of 555 hours as an instructor pilot, and 678 hours as first pilot, for a total of 1,233 hours of flight time.

6.  The documents provided by the applicant show that he was awarded the Air Assault Badge by Special Orders 127 dated 12 December 1963.

7.  On 3 December 1969, a DD Form 215, Correction to DD Form 214, was issued which added the Sharpshooter Marksmanship Badge with Pistol Bar and Expert Infantryman Badge.

8.  Army Regulation 600-8-22 provides for award of the Korean Service Medal.  In pertinent part, the regulation states that the Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.

9.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Korea Defense Service Medal.  This regulation specifies criteria for the award of the Korea Defense Service Medal as follows: a) service members of the Armed Forces must have served in support of the defense of the Republic of Korea from 28 July 1954 through a future date to be determined by the Secretary of Defense; b) the area of eligibility encompasses all land area of the Republic of Korea, the contiguous waters out to 12 nautical miles, and all air spaces above the land and water areas; and c) service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility and have been physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.  Only one award of the Korea Defense Service Medal is authorized for any individual.

10.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal (NDSM) is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 
14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.

12.  For award of the Army Aviator Badge, an individual must have satisfactorily completed the prescribed training and proficiency tests conducted by the U.S. Army Aviation Center and must have been designated as an aviator in appropriate orders.  For award of the Senior Aviator Badge, an individual must have 1,500 flying hours in aircraft or seven years from basic rating date. 

13.  Army Regulation 600-8-22 provides in pertinent part for award of the DFC.  The regulation states that the DFC is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

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 records show that he served in Greenland, Alaska, and Europe.  There is no record of him serving in Korea or Vietnam.  As such, he is not entitled to the Korean Service Medal, the Korea Defense Service Medal, or the Vietnam Service Medal. 


2.  The applicant had a total of 1,233 hours of flight time, which does not meet the requirement for award of the Senior Aviator Badge.  

3.  There is no evidence of the applicant being recommended for the DFC.  Without such a recommendation, there is insufficient basis in which to award the applicant that decoration.  While the available evidence is insufficient for awarding the applicant a DFC, this in no way affects the applicant’s right to pursue his/her claim for the DFC by submitting a request through his/her Member of Congress under the provisions of 10 USC 1130.

4.  However, the applicant was awarded the AGCM, Expert Marksmanship Badge with Pistol Bar, and Air Assault Badge which are not listed on either of his DD Forms 214.

5.  The applicant served during a timeframe in which the NDSM was authorized.  As such, he is entitled to have this award added to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x  __  __x_  __x_   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was awarded the AGCM for the period 28 October 1957 to 15 June 1959, the NDSM, the Air Assault Badge, and the Expert Marksmanship Badge with Pistol Bar.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him the Senior Aviators Badge, the Distinguished Flying Cross, and service medals for Korea and Vietnam.  

3.  The Board wants the applicant and all others concerned to 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.




      ___      x               ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017262



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