IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080007437 


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, in effect, award of the Distinguished Flying Cross. 

2.  The applicant states, in effect, that he was on a mission on 17 January 1970 in which several officers in his unit were awarded the Distinguished Flying Cross. He contends that if this incident is not recorded in his file, that it should be, and that he would like appropriate recognition for his participation in the mission.  He provides a copy of the General Orders awarding the Distinguished Flying Cross to several officers. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a copy of General Orders Number 3114, Department of the Army, Headquarters (HQ), 1st Aviation Brigade, dated 4 May 1970.

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 25 April 1969, the applicant enlisted in the Regular Army for a period of
3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  

3.  The applicant served in the Republic of Vietnam (RVN) from 9 January 1970 through 21 January 1971.  He performed duties as a senior helicopter repairman with the 335th Aviation Company (Assault Helicopter) from 13 January – 16 May 1970; and with the 175th Aviation Company (Assault Helicopter) thereafter.

4.  On 31 December 1970, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability.  His service was characterized as general, under honorable conditions.  

5.  There are no orders in the applicant's official records showing he was awarded the Distinguished Flying Cross.  His DA Form 20 (Enlisted Qualification Record) does not show award of the Distinguished Flying Cross.  There is no information in his records showing that he was recommended for or awarded the Distinguished Flying Cross for participation in a mission on 17 January 1970 while assigned to the 335th Aviation Company (Assault Helicopter) where the Distinguished Flying Cross was awarded to other officers in his unit.  There is no evidence that the applicant participated in aerial flight while in the RVN.

6.  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 Distinguished Flying Cross orders on file for the applicant.

7.  The applicant provided a copy of General Orders Number 3114 which awarded the Distinguished Flying Cross to officers in his unit for heroism while participating in aerial flight on 17 January 1970. 

8.  Army Regulation 600-8-22 (Military Awards) provides in pertinent part for award of the Distinguished Flying Cross.  The regulation states that the Distinguished Flying Cross is awarded to any person who, while serving in any 



capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

9.  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 that he is entitled to award of the Distinguished Flying Cross.  

2.  There is no evidence in the applicant's official record to show he was recommended for or awarded the Distinguished Flying Cross.  A check of the ADCARS failed to reveal any orders showing the applicant was awarded the Distinguished Flying Cross.  The applicant did not submit any evidence to support his contentions.

3.  While the available evidence is insufficient for awarding the applicant a Distinguished Flying Cross, this in no way affects the applicant’s right to pursue his claim for the Distinguished Flying Cross 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.



							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)                                         AR20080007437



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ABCMR Record of Proceedings (cont)                                         AR20080007437



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