IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010209 


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 award of the Bronze Star Medal.  He also requests, in effect, correction of his Report of Transfer or Discharge (DD Form 214) to show a different date of enlistment in the Army.

2.  The applicant states, in effect, that the date that he entered on active duty is incorrectly reflected on his DD Form 214.

3.  The applicant provides no additional documentation 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.  On 9 November 1967, the applicant enlisted in the Army in Chicago, Illinois, for 2 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was transferred to Vietnam on 5 April 1968.

3.  The applicant returned to the Continental United States on 21 August 1969.

4.  On 26 August 1969, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-212 for unsuitability.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.  His DD Form 214 also shows that he had 121 days of lost time due to AWOL and confinement.

5.  A review of the available records do not show that he was ever awarded the Bronze Star Medal while he was in the Army.

6.  United States Army Vietnam Regulation 672-1 (Military Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  

7.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty, discharge, or retirement.

8.  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 is no evidence in the available records, nor has the applicant submitted any evidence, to show that he was ever awarded the Bronze Star Medal.

2.  In accordance with the applicable regulation, the Bronze Star Medal may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.

3.  The applicant’s records do not show that he was recommended for or awarded the Bronze Star Medal; therefore, he is not entitled to this award.

4.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  In regard to the applicant’s date of entry into the Army, his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows 9 November 1967 as his date of enlistment.  It further shows in Item 57 (Oath of Enlistment) that he signed his name acknowledging his voluntary enlistment on 9 November 1967 for a period of two years.  He provided no evidence to show that the date of entry currently reflected on his DD Form 214 is incorrect.  Therefore, in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080010209



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010209



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1