IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080009974 


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 correction of his records to show award of the Army Commendation Medal with “V” Device and the Air Medal.

2.  The applicant states that the medals were not annotated on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also states that he lost his original DD Form 214 which showed award of the Air Medal and that the copy he requested and received from St. Louis does not show that award.

3.  The applicant provided General Orders and certificate, both dated 20 July 1970, showing he was awarded the Army Commendation Medal with “V” Device; and a copy of a certificate, dated 24 August 1970, and undated citation, showing he was awarded the Air Medal, 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's records show that he was inducted into the Army of the United States on 13 March 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank and grade he attained during his military service was sergeant (SGT)/E-5.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 12 March 1971. 

3.  The applicant’s records show he served in the Republic of Vietnam during the period 13 August 1969 to 12 August 1970.  He was assigned to Troop D, 7th Squadron, 17th Cavalry.

4.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Vietnam Service Medal with three bronze service stars, the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge with Grenade Launcher Bar (M-79), and the Army Commendation Medal (2nd Oak Leaf Cluster) and “V” Device.  Item 24 does not show award of the Air Medal.

5.  There are no General Orders in the applicant's records that show he was awarded the Air Medal.

6.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Air Medal orders on file for the applicant.

7.  Headquarters, 1st Aviation Brigade, General Orders Number 6033, dated 8 July 1970, show that the applicant was awarded the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam from 8 March 1970 to 30 April 1970.     

8.  Headquarters, 1st Aviation Brigade, General Orders Number 6123, dated 9 July 1970, show that the applicant was awarded the Army Commendation 
Medal (1st Oak Leaf Cluster) (erroneously shown as 2nd Oak Leaf Cluster), for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from August 1969 to August 1970.

9.  Headquarters, 1st Aviation Brigade, General Orders Number 6810, dated 20 July 1970 show that the applicant was awarded the Army Commendation Medal with “V” Device for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 25 April 1970. 

10.  The applicant’s records do not contain General Orders awarding him the Air Medal.  Furthermore, the applicant’s flight record is not available for review with this case.

11.  The applicant submitted a copy of certificate, dated 24 August 1970, and citation, that show he was awarded the Air Medal for meritorious achievement while participating in aerial flights in the Republic of Vietnam from 10 August 1969 to 5 November 1970.  

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  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.  There are no general orders that show the applicant was awarded the Air Medal and the applicant’s record is void of his flight record.  Absent a General Order awarding him the Air Medal, the certificate and citation submitted by the applicant are insufficient by themselves to award him the Air Medal.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Therefore, there is insufficient evidence upon which to base award of the Air Medal in this case.

2.  While the available evidence is insufficient for awarding the applicant the Air Medal, this in 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.

3.  With respect to award of the Army Commendation Medal with “V” Device, the evidence of records shows that the applicant was awarded three awards of the Army Commendation Medal, one of which is for valor, and that these awards are already shown on his DD Form 214.  The entry "Army Commendation Medal (2nd Oak Leaf Cluster) and a "V" Device" indicates that he was awarded three awards of the Army Commendation Medal, at least one of which was for valor.  Therefore, no further action is required regarding this entry

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															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)                                         AR20080009974



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ABCMR Record of Proceedings (cont)                                         AR20080009974



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