IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20070018225 


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:

	a.  reconsideration of his earlier request for award of the Purple Heart with First Oak Leaf Cluster; and

	b.  award of the Silver Star and the Joint Service Medal [sic]. 

2.  The applicant states the awards are not listed on his records due to an administrative oversight upon his separation and due to loss of records in St. Louis, Missouri. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 19 April 1970.

	b.  DD Form 215 (Correction to DD Form 214), dated 23 September 2005.

	c.  Letter Orders Number 08-1202022, dated 15 August 1973, Discharge Orders.

	d.  Undated Citation for award of the Army Commendation Medal.

	e.  Letter of Appreciation, dated 13 December 1969.
	f.  Undated and unsigned Certificate of Excellence.

	g.  DA Form 20 (Enlisted Qualification Record).

	h.  Extracts of medical, dental, and immunization records.

	i.  Standard Forms (SF) 88 (Report of Medical Examination), dated 16 August 1967 and 14 April 1970.

	j.  SF 89 (Report of Medical History), dated 16 August 1967 and 19 April 1970.

	k.  Two DA Forms 2658 (Health Record-Abstract of Service), dated in November 1967.

	l.  DA Form 1811 (Physical and Mental Status or Release from Active Service), dated 9 April 1970.

	m.  SF 600 (Chronological Record of Medical Care), dated 9 December 1968.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040004921, on 26 April 2005, wherein the applicant requested award of the Purple Heart with First Oak Leaf Cluster.

2.  Paragraph 2-15b of Army Regulation 15-185 governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request for reconsideration and determined that his request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, the applicant's request for reconsideration does not meet the criteria outlined above. The applicant has been notified by separate correspondence that his request for reconsideration is returned without action with regards to this issue.  As a result, his request for award of the Purple Heart with First Oak Leaf Cluster will not be discussed further in this Record of Proceedings.

3.  In his request, the applicant also seeks relief for two issues:
	a.  award of the Silver Star.  He had requested award of the Silver Star earlier with his original request for award of the Purple Heart; however, his request was previously administratively closed by letter, under 10 U.S. Code, section 1130; and

	b.  award of the Joint Service Medal. 

4.  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.

5.  The applicant’s records show that he enlisted in the Regular Army for a period of 3 years on 12 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  He was honorably released from active duty and was transferred to the U.S. Army Reserve Control Group (Reinforcement) on 19 April 1970.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

6.  The applicant's records further show that he served in the Republic of Vietnam from 15 February 1968 to 16 April 1970 as follows:

	a.  from 15 February 1968 to 2 December 1968, he was assigned as a security guard with the 194th Military Police Company; and

	b.  from 3 December 1968 to 16 April 1970, he was assigned as a senior military policeman with Company B, 716th Military Police Battalion.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 and Item 5 (Correction to Item Number 24) of the applicant's DD Form 215 show he was awarded the National Defense Service Medal, the Vietnam Service Medal with one silver service star and 2 bronze service stars, the Republic of Vietnam 
Campaign Medal, the Army Commendation Medal, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citations, the Republic of Vietnam Civil Actions Honor Medal with First Class Unit Citation, and the Meritorious Unit Commendation with 1 Oak Leaf Cluster.  Item 24 of the DD Form 214 and Item 5 of the DD Form 215 does not show award of the Silver Star or the Joint Service Medal.

8.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Silver Star or the Joint Service Medal. 

9.  There are no general orders in the applicant's records that show he was awarded the Silver Star or the Joint Service Medal.

10.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any award of the Silver Star or the Joint Service Medal orders on file for the applicant.

11.  The applicant was awarded the Army Commendation Medal for exceptionally meritorious service in support of military operations against a hostile force from February 1968 to May 1970, while in the Republic of Vietnam.

12.  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.

13.  The most common Department of Defense (DOD) individual decorations awarded to Soldiers with the applicant's level of responsibility were the Joint Service Achievement Medal (JSAM) and the Joint Service Commendation Medal (JSCM).  These awards are awarded in the name of the Secretary of Defense to members of all services assigned to the Joint Staff and to those joint activities reporting directly to or through the Chairman of the Joint Chiefs of Staff, or joint activities, as follows:

	a.  The JSCM was authorized by the Secretary of Defense on 25 June 1963 and implemented by DOD 1348.33-M.  It is awarded in the name of the Secretary of Defense to members of the Armed Forces of the United States who, after 1 January 1963, distinguished themselves by meritorious achievement or service.  The prescribing directive for the JSCM is DOD 1348.33-M.
	
	b.  The JSAM was authorized by the Secretary of Defense on 3 August 1983 and implemented by DOD 1348.33-M.   It is awarded in the name of the Secretary of Defense to members of the Armed Forces of the United State below the grade of 0-6 who, after 3 August 1983, distinguished themselves by outstanding performance of duty and meritorious achievement.  The prescribing directive for the JSAM is DOD 1348.33-M.

DISCUSSION AND CONCLUSIONS:

1.  With respect to award of a joint service medal, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows he was assigned to a joint activity.  The applicant's records show that he was assigned to an Army unit, governed by Army regulations, and under the command of an Army commander; therefore, he was entitled, if qualified, to Army awards only, not joint awards.

2.  With respect to award of the Silver Star, the applicant’s records show that he was clearly cited for his service in the in the Republic of Vietnam.  A decision was made to award him the Army Commendation Medal.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's service was noteworthy as to warrant award of the Army Commendation Medal.

3.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required, for each award requested.  The evidence of record shows that the applicant's record is void of a recommendation for award of the Silver Star; there are no general orders that 
show the applicant was awarded the Silver Star; and the applicant did not provide evidence that he distinguished himself for gallantry, spirited and conspicuous acts of heroism and courage performed with marked distinction, in action against the enemy.  Therefore, there is insufficient evidence to grant the applicant relief for award of the Silver Star in this case.

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)                                         AR20070018225



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ABCMR Record of Proceedings (cont)                                         AR20070018225



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