IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008


	DOCKET NUMBER:  AR20080007676 


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 Army Commendation Medal with "V" Device be upgraded to a Distinguished Service Medal or the Medal of Honor.

2.  The applicant states he was originally recommended for the Medal of Honor.  A three star general from the 198th Americal flew in to award him and another Soldier the Distinguished Service Medal for their actions on 2 November 1971.  After the presentation the medal pictures were taken and the Soldiers had to take the presentation medals off and give it back.  When he returned to the United States and received his award orders it was for the Army Commendation Medal with "V" Device not the Distinguished Service Medal.  He attempted to get this corrected but was denied because of the incident at "My Lai" and the Army did not want to have knowledge of this incident to get out.

3.  The applicant provides a personal statement describing the night of 2 November 1971 and a compact disc with a photograph on it.

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 entered active duty on 18 March 1971, completed training, and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  He served in Vietnam with C Company, 2nd Battalion, 1st Infantry Regiment, 23rd Infantry Division, 196th Infantry Brigade from 8 April 1974 through 18 June 1972.

4.  Headquarters, 23rd Infantry Division, General Orders Number 12431, dated 5 November 1971, awarded the applicant the Army Commendation Medal with "V" Device for heroism for his actions on 2 November 1971. 

5.  The record contains orders for the following awards:

	a.  Headquarters, 23rd Infantry Division, General Orders Number 12431, dated 5 November 1971, awarded the applicant the Army Commendation Medal with "V" Device;

	b.  Headquarters, 196th Infantry Brigade, General Orders Number 323, dated 19 November 1971, awarded the applicant the Combat Infantryman Badge;

	c.  Headquarters, 196th Infantry Brigade, General Orders Number 371, dated 7 February 1972, awarded the applicant the Bronze Star Medal with "V" Device for heroism for his actions on 4 February 1972; 

	d.  Headquarters, 196th Infantry Brigade, General Orders Number 2316, dated 3 June 1972, awarded the applicant the Army Commendation Medal for meritorious service for the period 31 August 1971 through 10 June 1972; and

	e.  Headquarters, 1st Infantry Division, Special Orders Number 264, dated 20 September 1972, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle bar.

6.  His DA Form 20 (Enlisted qualification Record) shows conduct and efficiency ratings were reported as exclusively excellent and lists his awards as the Bronze Star Medal with "V" Device, the Army Commendation Medal with "V" Device, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with "1960" Device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Combat Infantryman Badge, and the Expert Marksmanship Qualification with Rifle Bar.

7.  The applicant was honorably released from active duty, as a specialist four (E-4), on 8 January 1973 with 1 year, 9 months, and 21 days of creditable service.  His DD Form 214 lists his awards as the Bronze Star Medal with "V" Device, the Army Commendation Medal with "V" Device, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with "1960" Device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Combat Infantryman Badge, the Expert Marksmanship Qualification with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

8.  The photograph provided shows a group of Soldiers in field green uniforms.  The unit flag is not able to be distinguished.  Two Soldiers are shown to be wearing medals but what those medals are cannot be determined from this photograph.

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.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  In pertinent part, it states that:

	a.  the decision as to whether or not an award is approved, down graded or disapproved is subjectively made by the commander having approval authority.  Wartime approval authority for the DSC rests with commanders in the grade of major general or higher.  It may be delegated to brigadier generals commanding tactical units while filling a major general's position.

	

	b.  the Medal of Honor is awarded to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States;

	c.  the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades; and

	d.  the Distinguished Service Medal is awarded to any person who, while serving in any capacity with the U.S. Army, has distinguished himself or herself by exceptionally meritorious service to the Government in a duty of great responsibility.

DISCUSSION AND CONCLUSIONS:

1.  There is no documentation that the applicant was recommended for or awarded the Medal of Honor, the Distinguished Service Cross, or the Distinguished Service Medal.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement in regards to his request for an upgrade of his Army Commendation Medal with "V" Device.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X __  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.




       _    ___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)                                         AR20080007676



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ABCMR Record of Proceedings (cont)                                         AR20080007676



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