IN THE CASE OF:	 

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080012118 


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 separation document (DD Form  
214) be corrected to reflect the awards of the Legion of Merit and the Congressional Medal of Gold.  He also requests reconsideration of the Board’s denial of his request for the awards of the Purple Heart and the Combat Infantryman Badge.

2.  The applicant states, in effect, that he caused six Congressionals after returning from the Republic of Vietnam, in which one of them was the inactivation of Headquarters, Fourth United States Army but no entry was made in his record about those honor.  He states that he broke his nose in the Republic of Vietnam but was unable to tell the Army at the time.  His record shows he worked as a message clerk; however, he worked at the combat office of the message center.

3.  The applicant provides a DD Form 214, a Sworn Affidavit dated 19 February  
2001 with attachments, and items downloaded from the internet, 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001054559, on 30 August 2001.

3.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.

4.  The staff of the ABCMR reviewed the applicant’s request for reconsideration of the Board’s denial of his request for the Purple Heart and the Combat Infantryman Badge and determined that it was not received within 1 year of the ABCMR's original decision.  As a result, this portion of the applicant’s request will not be discussed further in these proceedings.  

5.  Army Regulation 600-8-22 (Military Awards), lists all Department of the Army individual military awards authorized for issuance in recognition of accomplishments.  However, there is no award named the Congressional Medal of Gold.  Therefore, the applicant’s request for the Congressional Medal of Gold will not be discussed further in these proceedings.

6.  The applicant's military personnel record shows he enlisted in the Regular Army on 25 March 1968.  He completed the necessary training and was awarded military occupational specialty (MOS) 36K (Field Wireman).

7.  He served as a message clerk in the Republic of Vietnam during the period from 15 September 1968 to 31 July 1969.  He was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri on 22 March 1971.

8.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows all the awards he was authorized; however, it does not show the award of the Legion of Merit.

9.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.

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 is no evidence of a Legion of Merit recommendation in the applicant’s record.  As such, there is no basis to award the applicant the Legion of Merit.

2.  While the available evidence is insufficient for awarding the applicant the Legion of Merit this in no way affects the applicant’s right to pursue his claim for the Legion of Merit 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 to award him the Legion of Merit.



      _________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)                                         AR20080012118



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ABCMR Record of Proceedings (cont)                                         AR20080012118



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