IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012312 


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, award of the Army Commendation Medal (ARCOM).

2.  The applicant states, in effect, that many other Soldiers in his platoon were awarded the ARCOM for the same missions he completed while serving on active duty.  He also indicates that many missions were not recorded due to an inept platoon sergeant.  He further states that he is providing two statements from two remaining survivors, a clerk and a staff sergeant, who received the award and witnessed the many injustices and foul-ups that resulted in many deserving Soldiers of his platoon not receiving the ARCOM.

3.  The applicant provides the following documents in support of his application:  Separation Document (DD Form 214); Witness Statements; Bronze Star Medal (BSM) and Air Medal (AM) citations; and Department of Veterans Affairs (VA) Letter, dated 13 February 2008.

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 record shows he enlisted in the Regular Army and entered active duty on 12 August 1968.  He was trained in, awarded, and served in  military occupational specialty (MOS) 54D (Chemical Equipment Repairman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 13 February 1969 to 17 February 1970. Item 38 (Record of Assignment) shows that during his RVN tour, he was assigned to the 10th Chemical Platoon, 101st Airborne Division.

4.  The applicant's record is void of any orders or other documents that show he was ever recommended for, or awarded the ARCOM by proper authority while serving on active duty.

5.  On 11 August 1971, the applicant was honorably released from active duty (REFRAD) after completing a total of 3 years active military service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.  The DD Form 214 he was issued at the time shows he earned the BSM, AM, Vietnam Service Medal with
3 bronze service stars, RVN Campaign Medal with Device (1960), and the National Defense Service Medal.  The ARCOM is not included in the list of awards contained on the DD form 214 and the applicant authenticated the document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

6.  The applicant provides two witness statements from two individuals who indicate that they were assigned for duty with the applicant in the RVN.  These individuals attest to the applicant's claim that their former platoon sergeant’s improper record keeping resulted in deserving Soldiers not receiving the ARCOM, and indicated the platoon sergeant was removed from the unit for some type of instability.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 3-17 of the awards regulation contains guidance on award of the ARCOM.  It states, in pertinent part, that the ARCOM is awarded to any member of the Armed Forces of the 
United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement or meritorious service.

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.  The applicant's claim of entitlement to the ARCOM and the evidence he provides has been carefully considered.  However, by regulation, the ARCOM may only be awarded by the proper awards authority based on a valid recommendation.  

2.  Although the applicant's claims regarding his former platoon sergeant are corroborated by the witness statements provided, there is no indication that the applicant or the witnesses raised or tried to resolve this issue through their chain of command at the time while on active duty.  The evidence of record contains no orders or other documents to show the applicant was ever recommended for or awarded the ARCOM by proper authority while he served on active duty.  Further, the ARCOM is not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD. In effect, his signature on this document was his verification that the information contained on the DD Form 214, to include the list of awards, was correct at the time it was prepared and issued.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

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



4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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. 

5.  The applicant and all others concerned should 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.  

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)                                         AR20080012312



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ABCMR Record of Proceedings (cont)                                         AR20080012312



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