IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080011151 


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 his military records be corrected to show the award of the Bronze Star Medal with "V" (for Valor) Device and First Oak Leaf Cluster, the Air Medal with Numeral "6" Device, the Army Commendation Medal with First Oak Leaf Cluster, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  He also requests the addresses and telephone numbers of three units.

2.  The applicant essentially states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not properly reflect all of his awards and decorations.  

3.  The applicant provides a self-authored letter, dated 14 June 2008, Headquarters, 1st Aviation Brigade General Orders Number 3563, dated 
28 November 1972, which awarded the Bronze Star Medal to multiple Soldiers, a certificate for award of the Air Medal, orders, dated 21 November 1972, and a certificate which awarded him the Air Medal (First through Fifth Award), orders, dated 29 July 1972, and a certificate which awarded him the Army Commendation Medal for the period January 1972 to July 1972, a certificate for the Army Commendation Medal for the period 3 January 1972 to 3 January 1973, and an un-translated certificate which appears to have awarded him the Republic of Vietnam Gallantry Cross with Palm Unit Citation 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 28 September 1970.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice), and was later awarded MOS 67N (UH-1 Helicopter Repairman).  After serving his initial permanent duty assignment at Fort Rucker, Alabama, he departed for the Republic of Vietnam on 4 January 1972.  His military records contain conflicting information regarding his assignments while in Vietnam, and there are no reassignment orders to confirm his exact reporting dates to his units in Vietnam.  It could be confirmed however that he served with Troop C, 16th Cavalry Regiment at some point during his service in Vietnam.  He returned to the continental United States on 19 December 1972, and served at Fort Knox, Kentucky until he was honorably released from active duty on 27 September 1973.  The DD Form 214 that he was issued at the time of his release from active duty, as amended by a DD Form 215, essentially shows that he was awarded the Air Medal, the National Defense Service Medal, the Vietnam Service Medal with Two Bronze Service Stars to signify that he participated in two campaigns during his service in Vietnam, the Republic of Vietnam Campaign Medal with "1960" Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

3.  The applicant requested the addresses and telephone numbers of three units. This is not a function of the ABCMR and, as a result, this portion of the applicant's request will not be discussed further in these proceedings.

4.  The applicant requested, in part, that his military records be corrected to show the award of the Bronze Star Medal with "V" Device and First Oak Leaf Cluster.  There are no orders in his military records awarding him any Bronze Star Medals, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, 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.  The applicant provided Headquarters, 1st Aviation Brigade General Orders Number 3563, dated 28 November 1972, which awarded the Bronze Star Medal to multiple Soldiers, but his name is not listed on these orders.

5.  The applicant also essentially requested that his military records be corrected to show the award of the Air Medal with Numeral "6" Device to denote that he was awarded six Air Medals.  He provided a certificate which shows that he was awarded the Air Medal for the period June 1972 to July 1972, and his military records contained Headquarters, United States Army Vietnam/Military Assistance Command Vietnam (MACV) Support Command General Orders Number 1694, dated 29 July 1972, which awarded him the Air Medal.  The applicant also provided orders, dated 21 November 1972, which awarded him the Air Medal (First through Fifth Award), but should have awarded him the Air Medal (Second through Sixth Award).  

6.  The applicant's DD Form 214 does not show that he was awarded the Army Commendation Medal with First Oak Leaf Cluster, but the applicant provided orders, dated 29 July 1972, which awarded him the Army Commendation Medal for the period January to July 1972.  His military records also contained orders, dated 28 November 1972, which awarded him a second Army Commendation Medal for the period 3 January 1972 to 3 January 1973.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.

8.  Army Regulation 600-8-22 also 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.  This regulation also provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  Numerals, starting with 2 will be used to denote second and subsequent awards of the Air Medal.

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 U.S. Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 his military records should be corrected to show the award of the Bronze Star Medal with "V" Device and First Oak Leaf Cluster, the Air Medal with Numeral "6" Device, the Army Commendation Medal with First Oak Leaf Cluster, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

2.  The sincerity of the applicant's claim that he was awarded the Bronze Star Medal with "V" Device and First Oak Leaf Cluster is not questioned.  However, all awards of the Bronze Star Medal must be announced in official orders, which the applicant did not provide, and are not in his military records.  Regrettably, absent orders awarding him two Bronze Star Medals with "V" Device, there is insufficient basis for correcting his military records to show the award of the Bronze Star Medal with "V" Device and First Oak Leaf Cluster.  However, the applicant is advised that this in no way affects his right to pursue his claim for these awards by submitting requests through his Member of Congress under the provisions of 10 USC 1130.



3.  General orders awarded the applicant six Air Medals, but his DD Form 214, as amended by his DD Form 215, only shows that he was awarded one Air Medal.  Therefore, he is entitled to correction of his DD Form 214 to show the award of the Air Medal with Numeral "6" Device.

4.  General orders twice awarded the applicant the Army Commendation Medal, but his DD Form 214 does not reflect this fact.  Therefore, he is entitled to correction of his military records to show the award of the Army Commendation Medal with First Oak Leaf Cluster.

5.  As the applicant's DD Form 215 already shows that he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, there is no basis for adding it a second time to his military records.

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 showing the award of the Air Medal with Numeral "6" Device, and the Army Commendation Medal with First Oak Leaf Cluster. 

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 showing the award of any Bronze Star Medals or the Republic of Vietnam Gallantry Cross with Palm Unit Citation, as the latter is already reflected on his DD Form 215. 






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 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)                                         AR20080011151



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ABCMR Record of Proceedings (cont)                                         AR20080011151



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