IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080008573
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 for Valor (ARCOM with V Device) be upgraded to a Silver Star.
2. The applicant states that his first sergeant (1SG) denied him a Silver Star and Bronze Star Medal for Valor (BSM with V Device) due to prejudice and anger towards him.
3. The applicant provides a copy of his separation document (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he was inducted and entered active duty on 2 October 1968. He was awarded the military occupational specialty of infantry indirect fire crewman and was promoted to pay grade E-4.
3. While serving in Vietnam, he was awarded the ARCOM with V Device on 1 May 1970. The reason for the decoration was, in part, Disregarding his own safety, he courageously exposed himself to the dangers inherent in the combat environment as he directed his efforts toward neutralizing the enemy threat. The applicants records do not contain any award recommendation for either the Silver Star or the BSM for Valor.
4. The applicant was honorably released from active duty on 17 June 1970. The DD Form 214 he was issued shows his significant awards as the ARCOM with V Device, the Combat Infantryman Badge, the BSM, and the Air Medal.
5. Army Regulation 600-8-22 provides that the Silver Star is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. 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. There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.
6. 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. The burden and cost for researching and assembling documentation to support approval of requested awards and decorations rests with the requester.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence that the applicant was recommended for the Silver Star or the BSM for Valor.
2. There is no evidence that the applicants 1SG caused an award recommendation for either the Silver Star or BSM for Valor to be downgraded, be it for prejudicial reasons or otherwise.
3. A commander must determine the level of heroism when he recommends a level of award for a soldier. This is a subjective decision, based on the circumstances of the battle and the intensity of the battle being fought.
4. The applicant has not submitted any evidence which would show that an ARCOM with V Device was clearly inadequate for the level of heroism he displayed.
5. As such, there is no basis for granting the applicants request.
6. While the available evidence is insufficient for awarding the applicant a Silver Star or Bronze Star Medal with V Device, this in no way affects the applicants right to pursue his claim for upgrading his ARCOM with V Device for the Silver Star or Bronze Star Medal with V Device by submitting a request through his Member of Congress under the provisions of 10 USC 1130.
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.
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