IN THE CASE OF:	  

		BOARD DATE:	        21 JANUARY 2009

		DOCKET NUMBER:  AR20080009883 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to reflect his awards of the Bronze Star Medal (BSM) and the Army Commendation Medal (ARCOM) with "V" Device and one oak leaf cluster (1OLC).

2.  The applicant states that he needs his DD Form 214 corrected to reflect his awards of the BSM and the ARCOM with "V" device and 1OLC.

3.  The applicant provides a copy of a letter from the Department of Veterans Affairs (VA) indicating that he is authorized awards of the BSM and ARCOM with "V" device and 1OLC, a copy of his citation for award of the BSM, a copy of a general order amendment showing that he was awarded the ARCOM with "V" device and 1OLC, a copy of a letter from the National Personnel Records Center (NPRC) indicating what awards he was authorized, and a copy of his 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 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 records were not available for review by the Board; however, the documents provided by the applicant are sufficient for the Board to conduct a fair and equitable review of his case.

3.  The applicant enlisted in the Regular Army in Jackson, Mississippi, on 26 November 1965 for a period of 3 years.  He completed his training as a generator repairman and while it cannot be determined exactly when he served in Vietnam, he was assigned to Company A, 801st Maintenance Battalion, 101st Airborne Division.  He was promoted to the pay grade of E-5 on 2 March 1968.

4.  He departed Vietnam on or about 18 October 1968 and was transferred to Oakland Army Base, California, where he was honorably released from active duty (REFRAD) on 18 October 1968 as an overseas returnee.  He had served 2 years, 10 months, and 23 days of total active service and his DD Form 214 issued at the time of his REFRAD reflects that he was awarded the Republic of Vietnam Campaign Medal with Device (1960), the National Defense Service Medal, the Vietnam Service Medal and the Parachutist Badge.

5.  On 23 June 1999, the VA Regional Office of Jackson, Mississippi, informed the applicant that a review of his file indicated that he was in receipt of the awards listed on his DD Form 214 and the awards of the BSM and the ARCOM with "V" device and 1OLC.

6.  On 16 May 2008, the NPRC informed the applicant that no record had been found that authorized him awards of the BSM and the ARCOM with "V" device and 1OLC.

7.  The BSM citation provided by the applicant indicates that the applicant was awarded the BSM for meritorious service in Vietnam during the period of 1 January 1968 to 31 August 1968.  There are no orders present in the available records which show that the BSM was awarded in competent orders.

8.  The general orders provided by the applicant show that he was awarded the ARCOM with "V" device on 30 December 1968 in General Orders Number 11299, and that on 9 May 1969 those orders were amended to show that he was in fact awarded the ARCOM with "V" device and 1OLC.

9.  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.  Award of the Bronze Star Medal for meritorious achievement or meritorious service for a lesser degree than that required for the Legion of Merit must have been meritorious and accomplished with distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was awarded the BSM is not in doubt, the applicable regulations required that before an award is made official, orders must be published.  The fact that the applicant has provided a citation for award of the BSM has been noted; however, that alone does not in itself satisfy the requirement that an order must be published before the award is allowed to be entered into official records.  Therefore, in the absence of such orders, there appears to be no basis to grant his request at this time.  However, if he is able to provide the orders he may apply to this Board for reconsideration.

2.  However, the applicant has provided orders which establish that he was awarded the ARCOM with "V" device and 1OLC.  Accordingly, it would be in the interest of justice to correct his records at this time to reflect that award.

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 concerned be corrected by amending his DD Form 214 to add the ARCOM with "V" device and 1OLC. 



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 award of the BSM to his records at this time.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20080009883





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ABCMR Record of Proceedings (cont)                                         AR20080009883



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