IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080007678 


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, correction of his DD Form 214 (Report of Transfer or Discharge) to show award of the Bronze Star Medal, the Army Commendation Medal with “V” Device, the Medal of Honor, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Air Medal, the Good Conduct Medal, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Combat Infantryman Badge, and the Marksmanship Qualification Badge with Rifle Bar.   

2.  The applicant states, in effect, that he wants of all his medals shown on one DD Form 214. 

3.  The applicant provides no additional evidence in support of his 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 was inducted on 13 June 1967.  He arrived in Vietnam on 
4 November 1967.  He served as a light weapons infantryman assigned to Companies B and D, 1st Battalion, 26th Infantry of the 1st Infantry Division in Vietnam from 13 November 1967 through 3 November 1968.  On 12 June 1969, the applicant was released from active duty.    

3.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal with Device (1960), two awards of the Overseas Service Bar, the Army Commendation Medal, the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar as authorized awards.  Since the Combat Infantryman Badge and the Expert Marksmanship Qualification Badge with Rifle Bar are shown on the applicant’s DD Form 214, this portion of the applicant’s request will not be discussed further in these Proceedings. 

4.  There are no orders for the Bronze Star Medal, the Army Commendation Medal with “V” Device, or the Medal of Honor in the applicant’s service personnel records.

5.  Records show the applicant participated in five campaigns during his assignment in Vietnam.

6.  A DD Form 215 (Correction to DD Form 214), dated 4 February 2003, amended the applicant’s DD Form 214 to add the Air Medal, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Since the applicant’s DD Form 214 was corrected to show these awards, this portion of the applicant’s request will not be discussed further in these Proceedings.    

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

8.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  The bronze “V” device indicates acts of heroism involving conflict with an armed enemy.

9.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Medal of Honor.  The Medal of Honor is awarded by the President in the name of Congress 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.  The regulation provides that the deed performed must have been one of personal bravery or self sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved the risk of life.  Further, the regulation requires that “incontestable proof” of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit.

10.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  This regulation provides that a silver service star is authorized in lieu of five bronze service stars.

11.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that a DD Form 214 will not be reissued unless directed by proper appellate authority, unless it is determined that required corrections will not fit within the space on a single DD Form 215 (Correction to DD Form 214), unless two DD Forms 215 have already been issued and another correction is required, or unless the character of service is changed.

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.  Since there are no orders for the Bronze Star Medal, the Army Commendation Medal with “V” Device, or the Medal of Honor in the applicant’s service personnel records, there is insufficient evidence on which to add these awards to his DD Form 214.

2.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, Army Commendation Medal with “V” Device, and the Medal of Honor, this in no way affects the applicant’s right to pursue his claim for the aforementioned three awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  The applicant’s DD Form 214 shows the Vietnam Service Medal with one bronze service star.  However, the applicant participated in five campaigns during his assignment in Vietnam which makes him eligible for award of the Vietnam Service Medal with one silver service star.   
 
4.  Although the applicant requests that of all his medals be shown on one DD Form 214, in accordance with the governing regulation there is no basis for reissuing a new DD Form 214 at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ___xx___  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.  deleting the entry, “Vietnam Svc Medal w/bronze svc star” on his DD Form 214; and

	b.  adding the Vietnam Service Medal with one silver service star to his DD Form 214. 
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 adding the Bronze Star Medal, the Army Commendation Medal with “V” Device, and the Medal of Honor to his DD Form 214, and as pertains to the issuance of a new DD Form 214.



      ________xxxx__________
               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)                                         AR20080007678



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ABCMR Record of Proceedings (cont)                                         AR20080007678



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