IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008 

		DOCKET NUMBER:  AR20080012777 


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 correction of his military records to show award of the Air Medal during his service in the Republic of Vietnam.

2.  The applicant states that he was in combat action with E Company, 3rd Battalion, 7th Infantry Regiment, 199th Light Infantry Brigade, and also with 
E Company, 2nd Battalion, 12th Infantry Regiment, 1st Cavalry Division, in the Republic of Vietnam. 

3.  The applicant provides a copy of a memorandum, dated 12 September 1970, from the Commanding Officer, E Company, 3rd Battalion, 7th Infantry Regiment showing that the applicant had participated in combat assaults on 23 separate days in 1970.

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 1 August 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11F (Infantry Operations and Intelligence Specialist).

3.  On 9 January 1970, the applicant was assigned for duty as an infantryman in the Republic of Vietnam.  On 19 January 1970, he was further assigned as an automatic rifleman with E Company, 3rd Battalion, 7th Infantry Regiment, 199th Light Infantry Brigade.

4.  The memorandum provided by the applicant shows that he participated in combat assaults on 23 different days from 27 February through 8 September 1970.  The document does not specify the number and/or category of missions or flight hours involved.   Furthermore, it does not clearly state that the combat assaults were by air.

5.  On 20 September 1970, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion, 12th Cavalry Regiment.  On 23 October 1970, he was reassigned within the battalion to E Company.  His duties while assigned with the 12th Cavalry Regiment are not specified in his records.

6.  On 26 November 1970, the applicant returned to the United States for duty at Fort Hood, Texas.

7.  On 31 January 1972, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of sergeant (SGT)/pay grade E-5, and had completed
2 years and 6 months of creditable active duty service.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Army Commendation Medal with Oak Leaf Cluster and "V" Device, Good Conduct Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and the Expert [Marksmanship Qualification Badge] with Rifle Bar.  It does not show award of the Air Medal.  

9.   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.

10.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  

11.  Title 10, U.S. 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 fails to substantiate that the applicant completed a minimum of 25 flight hours while engaged in combat Category I missions, or that he completed a minimum of 25 Category I air assault missions during his tour of duty in the Republic of Vietnam.  Therefore, his request for award of the Air Medal should be denied.

2.  While the available evidence is insufficient for awarding the applicant an Air Medal,  this in no way affects the applicant’s right to pursue his claim for the award 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)                                         AR20080012777



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ABCMR Record of Proceedings (cont)                                         AR20080012777



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