IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006867 


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 that his Report of Transfer or Discharge (DD Form 214) be corrected to show that he was awarded the Army Commendation Medal with ”V” Device and the Air Medal.

2.  The applicant states that he was supposed to be in the United States; however, he remained in Vietnam in “Base Camp” for 10 days longer.

3.  The applicant provides a copy of a The Army Commendation Medal certificate, a copy of General Orders Number 9546 dated 20 July 1969; and a copy of a citation for award of the Air Medal.

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 was inducted into the Army of the United States on 13 February 1968, in Cincinnati, Ohio.  He successfully completed his training as a unit and organization supply specialist.

3.  On 3 April 1968, Special Orders Number 81, published by Headquarters, United States Army Training Center (USATC), Infantry, Fort Benning, GA awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  On 6 June 1968, Special Orders Number 138, published by Headquarters, US Army School/Training Center, Fort McClellan, AL awarded him the Second Class Gunner [Marksman Marksmanship Qualification] Badge with Machinegun Bar
(M-60).

5.  On 11 June 1968, Special Orders Number 142, published by the same headquarters, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  The applicant was transferred to Vietnam on 27 July 1968.

6.  While in Vietnam, the applicant participated in the following four campaigns: the Vietnam Counteroffensive Campaign, Phase V, which extended from 1 July through 1 November 1968; the Vietnam Counteroffensive campaign, Phase VI, which extended from 2 November 1968 through 22 February 1969; the Tet 69 Counteroffensive, 1969 campaign, which extended from 23 February through
8 June 1969; and the Vietnam Summer-Fall 1969 campaign, which extended from 9 June through 31 October 1969.

7.  On 20 July 1969, General Orders Number 9546, published by Headquarters, 25th Infantry Division awarded the applicant the Army Commendation Medal with ”V” Device for heroism in connection with military operations against a hostile force on 27 June 1969.

8.  The applicant returned to the Continental United States on 23 July 1969.

9.  On 12 February 1970, the applicant was honorably released from active duty (REFRAD) at the expiration of his term of service and transferred to the US Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Vietnam Service Medal with two Bronze Service Stars, the Purple Heart, the Bronze Star 
Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Combat Infantryman Badge.  However, the Army Commendation Medal with ”V” Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar
(M-14 and M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60) were not included on his DD Form 214.

10.  A review of the available records does not show that orders were ever published awarding the applicant the Air Medal.

11.  Record shows the applicant was awarded the Vietnam Service Medal with two bronze service stars to reflect his Vietnam campaign participation; however, further review of the applicant’s records show he participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of four bronze service stars to be affixed to the Vietnam Service Medal.

12.  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 has presented a certificate showing that he was awarded the Air Medal; however, there are no orders in the available record, nor has he submitted any orders, that show he was awarded the Air Medal.  Therefore, there is insufficient evidence to award the applicant the air medal and to show this award on his DD Form 214.

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

3.  The applicant has presented General Orders Number 9546 showing that he was awarded the Army Commendation Medal with ”V” Device.  Therefore, it would be appropriate to include this award on his DD Form 214.

4.  The applicant is also entitled to have the Sharpshooter Marksmanship Qualification Badge (Rifle M-14 and Rifle M-16) and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60) included on his DD Form 214 based on the publication of official orders contained in his record.

5.  The applicant’s DD Form 214 currently reflects that he was awarded the Vietnam Service Medal with two bronze service stars.  However, he served in four campaigns while he was in Vietnam; therefore, his DD Form 214 should be amended to include four bronze service stars instead of the two bronze service stars that are currently reflected.

6.  In view of the foregoing, it would now be appropriate to correct the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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.  amending his DD Form 214 to show that he was awarded the Army Commendation Medal with ”V” Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 and Rifle M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60); and

	b.  deleting the Vietnam Service Medal with two bronze service stars from his DD Form 214 and adding the Vietnam Service Medal with four bronze service stars.




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 amending his DD Form 214 to reflect the award of the Air Medal.



      ___        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)                                         AR20080006867



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ABCMR Record of Proceedings (cont)                                         AR20080006867



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