IN THE CASE OF:	  

		BOARD DATE:	        15 OCTOBER 2008

		DOCKET NUMBER:  AR20080012139 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Combat Infantryman Badge (CIB), the Bronze Star Medal (BSM), and the Air Medal (AM).

2.  The applicant states, in effect, that these awards on not shown on his DD Form 214. 

3.  The applicant provides a copy of his DD Form 214 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 7 December 1976, the applicant was issued a DD Form 215 (Correction to DD Form 214) correcting his 11 October 1968 DD Form 214 to show award of the CIB and BSM.  Therefore, these awards will not be addressed further in these proceedings.  A copy of the DD Form 215 will be furnished to the applicant for his information and use.

3.  On 11 January 1967, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist four (SP4)/E-4.  

4.  The applicant served in the Republic of Vietnam (RVN) from 13 December 1967 - 19 February 1968.  He performed duties as an ammunition bearer with Company A, 2nd Battalion (Airborne), 501st Infantry Regiment.  On 29 December 1967, he was wounded by mortar fire.  He was initially treated in the RVN and Japan; transferred to Fort Devens, Massachusetts on 20 February 1968; and further to Fitzsimons General Hospital, Denver, Colorado on 16 March 1968.  

5.  On 11 October 1968, the applicant was retired due to permanent disability.

6.  There is no evidence in the applicant's official record to show he was awarded the AM.  His DA Form 20 (Enlisted Qualification Record) does not show award of the AM.

7.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any AM orders on file for the applicant.

8.  Army Regulation 600-8-22 (Military Awards) 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.



9.  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 was awarded the AM, but it was not annotated on his DD Form 214.  A review of his official record shows that he arrived in the RVN on 13 December 1967 and was wounded in action on 29 December 1967, 16 days after his arrival.  He was performing duties as an ammunition bearer and there is no evidence in his record that he was participating in aerial flight. 

2.  The applicant's official record does not contain a citation of orders or any other corroborating evidence that he was awarded the AM.  A review of ADCARS failed to reveal any AM orders.  While the available evidence is insufficient for awarding the applicant an AM, this in no way affects the applicant’s right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  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 did not submit any evidence that would satisfy this requirement at this time. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ___X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20080012139



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ABCMR Record of Proceedings (cont)                                         AR20080012139



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