IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080007496 


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, that he be awarded the Air Medal and the Meritorious Unit Commendation. 

2.  The applicant states, in effect, that these omissions occurred because of the rotation of administrative personnel and because Department of the Army General Order Number 43-72 was not published prior to his discharge from active duty.

3.  The applicant provided a copy of his DD Form 214; a copy of Special Orders Number 27; and a copy of DAGO Number 43 in support of this application.

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 record shows that he enlisted in the Regular Army on 
11 March 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 05D (Special Identifier Operator).  The highest rank he attained while serving on active duty was Specialist Five (E-5). 

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 1 May 1969 to 26 April 1970.  Special Orders Number 45, Headquarters 313th Radio Research Battalion, APO San Francisco, dated 14 February 1970 show the applicant was assigned to the 374th Radio Research Company in MOS 05D.

4.  Item 40 (Campaigns) of the applicant’s DA Form 20 shows that he participated in the Tet Counteroffensive, the Vietnam-Summer Fall 1969, and the Vietnam Winter-Spring 1970 campaigns.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that he earned the following awards during his active duty tenure:  the National Defense Service Medal (NDSM); the RVN Service Medal (VSM); the RVN Campaign Medal; the Cross of Gallantry with Palm Device (correctly known as the RVN Gallantry Cross with Palm Unit Citation); and the Good Conduct Medal. 

6.  On 10 September 1971, the applicant was honorably released from active duty after completing a total of 3 years, 9 months, and 27 days of active military service.  

7.  The applicant submitted Special Orders Number 27, dated 23 February 1970, issued by United States Army Security Agency, Arlington Hall Station, Arlington, Virginia show the applicant was awarded flying status as a crewmember with the pay code of FLC.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the unit to which the applicant was assigned 
was cited for award of the Meritorious Unit Commendation for the periods:

	a.  1 July 1968 to 30 June 1969 by Department of the Army General Orders (DAGO) Number 51, dated 1971 for meritorious achievement;

	b.  1 July 1969 to 8 December 1970 by DAGO 43, dated 8 December 1970. 


9.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that the applicant participated in three campaigns during his service in Vietnam.  This document shows that the applicant participated in the Tet Counteroffensive 1969, the RVN Summer Fall 1969, and the RVN Winter-Spring 1970 campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

10.  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.  

11.  U.S Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal for sustained operations.  Appendix IV of the regulation required that recommendations for award of the Air Medal for crewmembers or non-crewmembers on flying status will be submitted on USARV Form 157-R.  The recommendation for award must also state that the individual has “met the required number of missions and hours for award of the Air Medal”, and that “the individual has not caused, either directly or indirectly, an aircraft abort, late take-off, accident or incident”, and that the “individual’s accomplishments and service throughout the period have reflected meritorious performance, with no instance of nonprofessionalism, mediocrity, or failure to display an aggressive spirit”.

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 contends that he is entitled to correction of his records to show award of the Air Medal and the Meritorious Unit Commendation.

2.  There is no evidence nor did the applicant provide any evidence that shows the applicant is entitled to award of the Air Medal.  Although general orders show that he was awarded flying status there is no evidence that shows that he participated in the necessary combat missions required for receipt of this award.  In the absence of such evidence, there is insufficient basis to grant award of the Air Medal.

3.  While the available evidence is insufficient for awarding the applicant an Air Medal, this is 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.  

4.  General Orders show that the unit that the applicant was assigned to was awarded two Meritorious Unit Commendations.  Therefore, he is entitled to award of the Meritorious Unit Commendation with first oak leaf cluster, which is not shown on his separation document.  

5.  Records show the applicant participated in three campaigns during his service in Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  __x_____  ___x____  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’s DD Form 214, dated 
24 February 1972, be corrected by: 

      a.  deleting the Vietnam Service Medal; and 
      
		b.  showing award of the Meritorious Unit Commendation with first oak leaf cluster and the Vietnam Service Medal with three 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 the award of the Air Medal.



      _________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)                                         AR20080007496



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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