IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006040 


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 Air Medal with Numerals 12 – 46. 

2.  The applicant's counsel makes a statement on his behalf below.  He also contends that he participated in more than 763 hours of sustained aerial combat flight as a UH-1 crew chief from 1 June 1969 through December 1970.  

3.  The applicant's evidence is provided by his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant award of the Air Medal with Numerals 12 – 46).

2.  Counsel states, in effect, that he was the applicant's platoon leader from 
8 October 1969 until 20 July 1970 and that the applicant participated in sustained aerial flight as a crew chief.  He flew approximately 522 hours with the applicant and the hours were logged as combat time.  He refers to a flight log; however, it was not submitted as evidence.  He contends the applicant's total hours of flight time was 763 hours and that he was only awarded the initial Air Medal with Numerals 1 -11.   

3.  Counsel provides a copy of a self authored statement; a copy of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty); copies of the applicant's orders awarding him the Air Medal with Numerals 2-11); and copies of the Air Medal Award Certificates.
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 retired by reason of permanent disability on 28 September 1993.  His DD Form 214 is nearly illegible.  Attempts were made to secure a better copy of his DD Form 214 as well as his official military personnel records; however, all attempts were unsuccessful.  Therefore, a review is being made on the evidence submitted by the applicant and his counsel.

3.  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 Air Medal with Numerals 12-46 orders on file for the applicant.

4.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

5.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not 




eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  
 
6.  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 is entitled to award of the Air Medal with Numerals 12 – 46.  

2.  The applicant's official military record was unavailable for review.  Efforts were made to obtain a copy of his records; however, these efforts did not meet with success.  Given the absence of any supporting evidence, there is no basis upon which to grant the applicant's request.  

3.  While the available evidence is insufficient for awarding the applicant the Air Medal with Numerals 12 - 46, this in no way affects the applicant’s right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  Given the above, there is insufficient evidence to grant the applicant's request. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.




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.



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               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)                                         AR20080006040





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ABCMR Record of Proceedings (cont)                                         AR20080006040



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