IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080010114 


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, that he be awarded the Army Commendation Medal with "V" (for Valor) Device and all other awards that he is entitled to that are not shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant essentially states that the Army Commendation Medal with "V" Device and other awards that he is entitled to are omitted from his DD Form 214. He also states, in effect, that he was or should be awarded the Army Commendation Medal for service during the last 3 months of his tour in Vietnam. He further states that the award of the Bronze Star Medal and/or the Army Commendation Medal should also have the "V" device affixed to it for heroism.   

3.  Although the applicant indicates he has provided a written statement to support award of the Bronze Star Medal, he did not provide this statement or any additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 13 February 1970.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 70A (Clerk) and was later awarded primary MOS 55B (Ammunition Storage Specialist).  He departed for the Republic of Vietnam on 4 August 1970; however, prior to doing so, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for absenting himself without proper authority from the United States Army Overseas Replacement Station at Fort Lewis, Washington from on or about 17 July 1970 until on or about 31 July 1970.  His punishment consisted of reduction in rank and pay grade from private/E-2 to private/E-1 and a forfeiture of $31.00 pay per month for 1 month.  Upon arrival in Vietnam he was briefly assigned to the 576th Ordnance Company from 14 to 18 August 1970, then he was assigned to the 54th Ordnance Company.  He returned to the continental United States on 4 August 1971, and served at Fort Benning, Georgia until he was honorably released from active duty on 26 February 1973.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the Bronze Star Medal, the National Defense Service Medal, the Vietnam Service Medal with Two Bronze Service Stars, the Republic of Vietnam Campaign Medal with 1960 Device, and the Expert Marksmanship Qualification Badge with M-16 Rifle Bar.

3.  The applicant indicated in his application that his Bronze Star Medal and/or the Army Commendation Medal should have the "V" device affixed to it for heroism.  He also indicated that a written narrative was provided in support of the Bronze Star Medal.  However, orders, dated 19 May 1971 awarded the applicant the Bronze Star Medal and not the Bronze Star Medal with "V" Device.  There is also no written narrative in his military records for his award of the Bronze Star Medal.  Additionally, there are no orders in the applicant's military records which awarded him any level of the Army Commendation Medal.  Further, a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Bronze Star Medal with "V" Device or any level of the Army Commendation Medal.



4.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

5.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in 
Vietnam.  This document shows that at the time of the applicant’s assignment to the 54th Ordnance Company, the unit was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 50, dated 1971, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 8, dated 1974.

6.  The applicant's DD Form 214 does not show that he was awarded the Expert Marksmanship Qualification Badge with M-14 Rifle Bar.  However, he was awarded the Expert Marksmanship Qualification Badge with M-14 Rifle Bar by Headquarters, 4th Combat Support Training Brigade, Fort Jackson, South Carolina Special Orders Number 72, dated 27 April 1970.

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.

8.  Army Regulation 600-8-22 also 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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.  The applicant contends that he should be awarded the Army Commendation Medal with "V" Device and all other awards that he is entitled to that are not shown on his DD Form 214.

2.  Orders awarded the applicant the Bronze Star Medal which is already listed on his DD Form 214.  However, as there are no orders in the applicant's military records or in ADCARS awarding the applicant the Bronze Star Medal with "V" Device or any level of the Army Commendation Medal, and the fact that the applicant provided no evidence which shows that he was awarded these medals, there is insufficient basis for correcting his military records to show the award of the Bronze Star Medal with "V" Device or any level award of the Army Commendation Medal.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal with "V" Device or any level of the Army Commendation Medal, this in no way affects the applicant’s right to pursue his claim for these medals by submitting a request through his Member of Congress under the provisions of 10 USC 1130.  

3.  General orders awarded the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the 54th Ordnance Company while the applicant was assigned to this unit.  Therefore, he is entitled to award of the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and correction of his military records to show these unit awards.

4.  Special orders awarded the applicant the Expert Marksmanship Qualification Badge with M-14 Rifle Bar, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show this 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:

	a.  awarding him the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and
	b.  showing the award of the Expert Marksmanship Qualification Badge with M-14 Rifle Bar.

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 awarding him the Bronze Star Medal with "V" Device or any level award of the Army Commendation Medal.

3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080010114



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ABCMR Record of Proceedings (cont)                                         AR20080010114



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