IN THE CASE OF:	 

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080005672 


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 his Letter of Commendation be upgraded to an Army Commendation Medal.

2.  The applicant states he believes he should be entitled to the Army Commendation Medal and that his previous request should not have been denied.  He further states he now has statements from witnesses who can verify that he should be entitled to an Army Commendation.

3.  The applicant provides, in support of his application, copies of a Letter of Commendation, three statements from former Soldiers, and two newspaper articles.

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 personnel record shows he was inducted on 
25 October 1965 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 95B (Military Policeman).

3.  The applicant was assigned to Company A, 504th Military Police (MP) Battalion in the Republic of Vietnam during the period from 1 April 1966 to 
9 February 1967.

4.  On 11 March 1967, the applicant's battalion commander issued a Letter of Commendation commending the applicant for the superior manner in which he had performed his duties while assigned to the 504th MP Battalion.  In this letter the commander cited the applicant's courageous action in the face of the enemy during a terrorist attack in Phan Rang.  In a forwarding endorsement, the applicant's company commander cited the applicant for his exemplary performance of duty while in the Republic of Vietnam and that his accomplishments were representative of tireless, devoted effort.

5.  The applicant was awarded the Purple Heart for wounds received on 
4 February 1967.

6.  There is no evidence of the applicant having been recommended for the award of the Army Commendation Medal.

7.  There are no orders in the applicant's military personnel record jacket for award of the Army Commendation Medal.

8.  On 24 October 1967, the applicant was released from active duty by reason of his completion of his term of service.  He had completed 2 years of active service that was characterized as honorable.

9.  A letter, dated 5 March 2008, from the applicant's former first lieutenant describes an incident on 4 February 1967 wherein the applicant and another Soldier were alerted by a dog of a possible threat to the MP Station.  The letter goes on to describe how when the applicant realized an attack was eminent on the MP Station he raised the alarm and fired at the enemy soldier who was trying to escape.  He further indicated the applicant should have been considered for a decoration such as the Bronze Star Medal.

10.  A letter, dated 28 February 2008, from a former Soldier who was with the applicant on 4 February 1967 describes the incident where they alerted the MP Station of the Viet Cong sapper attack.  

11.  A letter, dated 21 February 2008,  from the applicant's former sergeant indicates the applicant was able to raise the alarm of an impending attack by a Viet Cong sapper and prevent casualties from inside the MP Station.  The former sergeant further states the applicant should have been recommended for a Bronze Star Medal with "V" Device.

12.  The applicant submitted a newspaper article reporting his award of the Purple Heart.  He submitted another newspaper article reporting a letter to his parents from the applicant's former first lieutenant concerning the applicant's having been wounded on 4 February 1967.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement, or meritorious service.  

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 contends he should be awarded an Army Commendation instead of a Letter of Commendation for his service in the Republic of Vietnam and that his previous request should not have been denied.

2.  Although the applicant talks about a previous request for the Army Commendation Medal, there is no record of the applicant having made a previous request to the ABCMR.

3.  The final decision to approve an award and which award is appropriate are both subjective decisions made by the commander having award approval authority.  The award approval authority is solely responsible, in accordance with Army regulation, for the determination if recognition is warranted and, if so, the appropriate level of recognition.  Commanders carefully review every individual award recommendation to preserve the prestige and integrity of the Army’s military decorations.

4.  The Letter of Commendation and the endorsement thereto indicate that both the applicant's company commander and his battalion commander were aware of the incident on 4 February 1967 and the applicant's role during the incident.  The decision to issue the applicant a Letter of Commendation was well within the authority of the award’s approval authority. The fact that the applicant believes that he should have received a higher award does not serve as justification to upgrade his medal.  

5.  There is no evidence of record of anyone in the applicant's chain of command having submitted a recommendation that the applicant be awarded the Army Commendation.  Two of statements submitted by the applicant are from former Soldiers who were in the position to recommend such an award at the time of the incident.  Statements provided 60 years after the fact are insufficient to show there was an error or injustice at the time.

6.  In order to justify the upgrade of an award the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  

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

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)                                         AR20080005672



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ABCMR Record of Proceedings (cont)                                         AR20080005672



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