IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080011753 


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 the Air Medal with "V" Device awarded to him on 22 November 1968 be upgraded to a Distinguished Flying Cross.

2.  The applicant states, in effect, that he was initially told that he was put in for the Distinguished Flying Cross, per Title 10 U.S.C. Section 3749.  He states as a crew chief it was his duty to inform the commander if the aircraft could complete the operation.  He states that he volunteered the aircraft for the sake of a Soldier that fell out from a previous extraction attempt.  While entering the hot landing zone (LZ) they came under extreme enemy fire and the pilot was killed.  The applicant states that he was wounded and the co-pilot would not take control of the aircraft until he moved to the front of the aircraft to motivate the co-pilot to fly them out of the LZ.  He further states he was unaware of the procedure for correction of his record.  After reviewing the award that was given to his Aircraft Commander he questioned why his award was downgraded to an Air Medal with "V" Device.

3.  The applicant provides a copy of Headquarters, 1st Aviation Brigade General Orders Number 7756, dated 22 November 1968 and a Citation for the Distinguished Service Cross.







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 personnel record shows that he enlisted in the Regular Army on 23 January 1967.  He completed the necessary training and was awarded military occupational specialty (MOS) 67N (Utility Helicopter-1 Crew Chief).

3.  He served with the 240th Assault Helicopter Company in the Republic of Vietnam during the period of 8 March 1968 to 7 March 1969.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri on 24 March 1970.  He completed  
3 years and 1 day of Net Service This period.

4.  The applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows all of the awards that he is authorized to include the Air Medal with "V" Device.  However, it does not show the Distinguished Flying Cross.

5.  Army Regulation 600-8-22 (Military Awards) provides in pertinent part for award of the Distinguished Flying Cross.  The regulation states that the Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.


6.  Army Regulation 600-8-22 provides, that the Air Medal is awarded in time of war for heroism, for meritorious achievement (single acts of a lesser degree than which required for the Distinguished Flying Cross) and for meritorious service (sustained distinction in the performance of duties).  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

7.  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 available evidence does not support that the applicant was recommended for award of the Distinguished Flying Cross and that it was downgraded to an Air Medal with "V" Device.  As such, there is no basis to award the applicant the Distinguished Flying Cross.

2.  In addition, the Aircraft Commander was fatally wounded.  The Aircraft Commander received the Distinguished Service Cross posthumously for extraordinary heroism in action against hostile forces.

3.  While the available evidence is insufficient for awarding the applicant the Distinguished Flying Cross this in no way affects the applicant’s right to pursue his claim for the Distinguished Flying Cross by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.




      _______ _X   _______   ___
               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)                                         AR20080011753



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ABCMR Record of Proceedings (cont)                                         AR20080011753



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