IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080004441 


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 correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show award of the Bronze Star Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The applicant states that he was told he would receive these awards.

3.  The applicant provides a copy of his DD Form 214.

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.  On 22 January 1970, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 64B (Heavy Vehicle Driver).
3.  On 19 June 1970, the applicant was assigned for duty as a heavy vehicle driver with the 359th Transportation Company in the Republic of Vietnam.

4.  On 28 April 1971, the applicant returned to the United States for duty at Fort Devens, Massachusetts.

5.  On 23 September 1971, the applicant was released from active duty.  He had attained the rank of specialist five, pay grade E-5 and had completed 1 year, 
8 months and 2 days of creditable active duty.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, lists his awards as the National Defense Service Medal, Vietnam Service Medal, [Republic of] Vietnam Campaign Medal with "1960-" Device, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Bronze Star Medal or the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

7.  There is no available evidence in the applicant’s records or on the Awards and Decorations Computer Assisted Retrieval System (ADCARS) showing that he was awarded a Bronze Star Medal. 

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 359th Transportation Company, during the time of the applicant's assignment, was cited in Department of the Army General Orders Number 24, dated 1972, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years. 

10.  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.
 
11.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were excellent.  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 

13.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.  

14.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following two campaign periods: the DA Sanctuary Counteroffensive and the Vietnam Counteroffensive, Phase VII.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence of record showing that the applicant was awarded the Bronze Star Medal for his service or achievement in the Republic of Vietnam.  Therefore, his request to correct his records to show this award should be denied.  However, should the applicant have, or be able to obtain a copy of the orders awarding him the Bronze Star Medal, or other substantiating evidence, he may submit another application for consideration.


2.   While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

3.  The applicant’s records clearly show that he distinguished himself in the performance of his military service by attaining the rank of specialist five and receiving all excellent ratings for conduct and efficiency.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

4.  Records show that the applicant participated in two campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of two bronze service stars to be affixed to his Vietnam Service Medal.

5.  The applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.   

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:

      a.  awarding him the Army Good Conduct Medal for the period from 
22 January 1970 to 23 September 1971; and

	b.  showing that in addition to the awards shown on his DD Form 214, that his authorized awards include the Army Good Conduct Medal, two bronze service stars to be affixed to his already awarded Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.
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 award of the Bronze Star Medal.  




       _    ___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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080004441



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