IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080005725 


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 award of the Silver Star and the Bronze Star Medal.

2.  The applicant states that he was told by his commanding officer that he was getting both awards for his service in the Republic of Vietnam.  However, he was told afterwards, that the records were lost.  He further adds that if he had been issued those awards, this would have changed his rank and attitude about staying in the Army.

3.  The applicant provides a copy of the Veterans of Foreign Wars (VFW) Flyer listing the Vietnam campaigns. 

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 records show that he enlisted in the Regular Army for a period of 4 years on 23 July 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 05H (Morse Interceptor).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 23 July 1973.

3.  The applicant’s records show that he completed two periods of foreign service as follows: 

	a.  Vietnam, from 5 July 1971 to 29 May 1972; he was assigned to A Company, Radio Research Field Station (RRFS), and  

	b.  Thailand, from 29 May 1972 to 1 July 1973; he was assigned to B Company, 7th RRFS.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was awarded the National Defense Service Medal, the Good Conduct Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal, two Overseas Service Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 24 does not show award of the Silver Star or the Bronze Star Medal. 

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show award of the Silver Star or the Bronze Star Medal.

6.  The applicant's records do not contain General Orders awarding him the Silver Star or the Bronze Star Medal.

7.  During the processing of this case, a member of 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 Silver Star or Bronze Star orders on file for the applicant.  





8.  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.  

9.  Army Regulation 600-8-22 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star or the Bronze Star Medal.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to awarding him the Silver Star, or the heroism and meritorious achievement or service that led to awarding him the Bronze Star Medal.

2.  While the available evidence is insufficient for awarding the applicant the Silver Star and/or the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Silver Star and/or the Bronze Star 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

__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)                                         AR20080005725



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ABCMR Record of Proceedings (cont)                                         AR20080005725



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