IN THE CASE OF:	  

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080012558 


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 the Bronze Star Medal with “V” Device. 

2.  The applicant states, in effect, that he was awarded the Bronze Star Medal with “V” Device for valor, which he never received.  He also states, in effect, that the supporting documents may have been lost or not received by the proper Army personnel.  

3.  The applicant provides copies of his DD Form 214 (separation documents), a copy of a proposed citation for award of Bronze Star Medal, a copy of an eyewitness statement, a statement recommending award of the Bronze Star Medal with “V” Device and a copy of a statement recommending award of the Bronze Star Medal for meritorious service. 

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 that he enlisted in the Army on 7 July 1967.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was (SGT)/pay grade E-5. 

3.  Item 5 (Overseas Service) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he served in the Republic of Vietnam (RVN) with the 5th Special Forces Group from 23 February 1969 through 22 February 1970 performing duties in MOS 11B and in MOS 71B (Clerk Typist).

4.  Item 21 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he earned the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Combat Infantryman Badge (2nd award), the RVN Parachutist Badge, the RVN Gallantry Cross with Palm Unit Citation, the Army Commendation Medal with “V” Device, the RVN Campaign Medal with ”1960” Device, the Purple Heart, the Bronze Star Medal with “V” Device, the Expert Marksmanship Qualification Badge with (M-14) Rifle Bar, and two Overseas Service Bars.  

5.  The applicant submitted a copy of a proposed citation awarding him the Bronze Star Medal with “V” Device.  

6.  The applicant submitted a copy of an unnotarized eyewitness statement from Lieutenant K------- S----- who states that from 27 August to 2 September 1969 he oversaw and observed the exceptionally valorous actions by the applicant while under fire.   

7.  The applicant submitted a copy of an unnotarized statement from Captain 
C---- H--- supporting the applicant’s request for award of the Bronze Star Medal with “V” Device for the period from 27 August to 2 September 1969.  

8.  The applicant submitted a copy of an unnotarized statement from Captain 
F---- I--- supporting the applicant’s request for award of the Bronze Star Medal for meritorious service for the period from 29 February 1969 to 22 February 1970.   




9.  United States Army Vietnam Regulation 672-1 (Military Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal with “V” Device may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  

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.  The applicant’s contention that he is entitled to correction of his record to show award of the Bronze Star Medal with “V” Device was carefully considered and found to be without merit.  

2.  The applicant provided two witness statements supporting award of the Bronze Star Medal with “V” Device, however, the applicant’s record does not contain any evidence that corroborates that he was awarded the Bronze Star Medal with “V” Device.  In the absence of such evidence there is an insufficient basis to grant award of the Bronze Star Medal with “V” Device.

3.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal with “V” Device, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal with “V” Device 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)                                         AR20080012558



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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