IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080000996 


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 the Army Commendation Medal (ARCOM) he received for valor be upgraded to a Bronze Star Medal (BSM).  He further requests that the Purple Heart (PH) he received be added to his separation document (DD Form 214). 

2.  The applicant states, in effect, that he believes he should have been awarded the BSM because his platoon sergeant earned this award for the same battle action on 28 January 1967, that resulted in his being awarded the ARCOM with "V" (Valor) Device.  He further states that he wishes to join the Military Order of the Purple Heart (MOPH), but is unable to because the PH he was awarded is not listed on his DD Form 214.  He now requests that the ARCOM with "V" Device he received be upgraded to a BSM with "V" Device, and that the PH he received be added to his DD Form 214.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; DD Form 214; Authorization for Issuance of Awards (DA Form 1577); and 1st Cavalry Division (Airmobile) General Orders Number 2176, dated 6 May 1967.

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 he enlisted in the Regular Army and entered active duty on 23 September 1968, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 10 July 1966 through 8 July 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 2nd Battalion, 12th Cavalry Regiment.  Item 40 (Wounds) shows that he was wounded in action in the RVN on 20 November 1966.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  Vietnam Service Medal (VSM); National Defense Service Medal (NDSM); Combat Infantryman Badge (CIB); Air Medal (AM); RVN Campaign Medal; and ARCOM with "V" Device.

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM during his active duty tenure.  

5.  On 20 September 1968, the applicant was honorably released from active duty (REFRAD), in the rank of sergeant, after completing 2 years, 11 months, and 28 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons awarded or Authorized) of the DD Form 214 he was issued at this time shows he earned the following awards during his tenure on active duty: NDSM; CIB; AM; ARCOM; VSM with bronze service star; and RVN Campaign Medal.  A correction (DD Form 215) to the applicant's DD Form 214, dated 24 May 1990, added the PH to the list of awards in Item 24.  


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.  Chapter 3 of the awards regulation contains guidance on individual decorations.  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.  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 to upgrade his ARCOM for valor to a BSM was carefully considered.  However, given he 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.  This action in no way detracts from the applicant's outstanding combat service in the RVN.  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.  

2.  The applicant's request to have the PH he received added to his DD Form 214 was also carefully considered.  However, the applicant's OMPF contains a DD Form 215 issued in 1990 that added the PH to the list of awards contained in Item 24 of his DD Form 214.  Therefore, no further action is necessary on this matter.  A copy of the DD Form 215 that added the PH is enclosed for the applicant's use. 

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.  Although there is insufficient evidence for the Board to upgrade the applicant's ARCOM to a BSM, it is noted that the applicant has not yet exhausted all remedies available to him under the law in pursuing this matter.  By law, he may pursue his claim to the BSM 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:

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.




 _   _____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)                                         AR20080000996



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ABCMR Record of Proceedings (cont)                                         AR20080000996


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