IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080000744 


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, in effect, that his award of the Bronze Star Medal (BSM) with “V” (Valor) Device be upgraded to award of the Silver Star (SS).

2.  The applicant states, in effect, that on the date of action for his award of the BSM with "V" Device his platoon sergeant approached him and asked him if he would be willing to take award of the BSM with "V" Device vice the SS because too many had already been awarded.  He claims that although his platoon sergeant informed him that there had already been too many Silver Stars awarded he [platoon sergeant] himself received award of the SS.  He also states that he feels that his platoon sergeant did not deserve award of the SS because he [applicant] and another Soldier where the ones that blew up the bunker, killed 3 enemy soldiers, and captured the enemy's .30 caliber machine gun and ammunition.  He further states that he now requests that his BSM with "V" Device for his service on 14 April 1970 be upgraded to the SS.

3.  The applicant provides Headquarters, 1st Aviation Brigade General Orders Number 7016, dated 21 July 1970 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 shows that on 31 May 1986, he was honorably released from active duty for the purpose of retirement.  The separation document (DD Form 214) issued to him at this time shows he completed a total 20 years and 25 days of active military service, and that he held the rank of Sergeant First Class (SFC).

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the separation document (DD Form 214) he was issued upon his retirement shows he earned the following awards during his tenure on active duty:  Vietnam Service Medal; National Defense Service Medal; Combat Infantryman Badge; Parachutist Badge; Republic of Vietnam Campaign Meal with Device (1960); Bronze Star Medal with "V" Device; Overseas Service Bars (5); Air Medal; Purple Heart; Army Service Ribbon; Army Good Conduct Medal (6th Award); Noncommissioned Officer Professional Development Ribbon with Numeral 3; Overseas Service Ribbon; Army Achievement Medal with Second Oak Leaf Cluster; Meritorious Service Medal with First Oak Leaf Cluster; and Army Commendation Medal with Fifth Oak Leaf Cluster.

4.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, 1st Aviation Brigade, General Orders Number 7016, dated 21 July 1970.  This document awarded the applicant the BSM with "V" Device for his heroism in connection with military operations against a hostile force on 14 April 1970.

5.  The applicant's OMPF contains no orders or other documents that would indicate that he was ever recommended for or received the SS during his tenure on active duty.

6.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 1-16 contains guidance on reconsideration of disapproved or downgraded award recommendations.  It states, in pertinent part, that a request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority's decision.  

7.  Paragraph 3-1, states in pertinent part that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  

8.  Paragraph 3-10, states in pertinent part that the Silver Star is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.

9.  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 request that his BSM with "V" Device for his action on 14 April 1970 be upgraded to the SS was carefully considered.  However, there is insufficient evidence available to support granting the requested relief.  

2.  Given the applicant provides no additional documentation not considered by the award approval authority at the time, and absent any evidence of error or injustice in the processing of the award in question, there is an insufficient evidentiary basis to support an upgrade at this time.  The applicant and all Americans should be justifiably proud of his service in arms.  






3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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. 

4.  While the Board finds the available evidence insufficient for upgrading the applicant’s BSM with "V" Device to a SS, it does note that the applicant has not yet exhausted all remedies available to him under the law in pursuing an upgrade of his award to a SS.  By law, he may pursue his claim to the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 10 USC 1130, an option he may still wish to pursue.  

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 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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________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)                                         AR20080000744



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ABCMR Record of Proceedings (cont)                                         AR20080000744



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