IN THE CASE OF:	  

		BOARD DATE:	  4 DECEMBER 2008

		DOCKET NUMBER:  AR20080012838 


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, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect that he was awarded the Silver Star.  

2.  The applicant states, in effect, that the award is shown in his files, but not on his DD Form 214.    

3.  In support of his application, the applicant provides copies of his general orders for the Silver Star and his DD Form 214.

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 military records show he was inducted into the Army of the United States on 1 March 1968.  He completed basic and advanced individual training and was assigned military occupational specialty 11C, infantry indirect fire crewman.  He served in the Republic of Vietnam from 30 July 1968 to 6 November 1968, with Headquarters and Headquarters Company, 1st Battalion, 8th Calvary, 1st Air Calvary Division, and Company C, 1st Battalion, 8th Cavalry, 1st Air Cavalry Division.

3.  The applicant was wounded in action in the Republic of Vietnam on 5 October 1968 and placed in a patient status.  He was transferred in a patient status to the Valley Forge General Hospital, Phoenixville, Pennsylvania, on 8 November 1968. 

4.  The applicant was released from active duty, in pay grade E-3, on 23 September 1969, for the purpose of retirement and transferred to the Temporary Disability Retired List.  

5.  Entries on the applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) list the following awards:  the National Defense Service Medal; the Vietnam Service Medal; the Vietnam Campaign Medal; the Good Conduct Medal; the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar; and the Purple Heart.  The Silver Star is not listed on his DD Form 214.  

6.  The applicant's records contain General Orders Number 6, dated 22 January 1969, wherein he was awarded the Purple Heart at Valley Forge General Hospital.  

7.  The applicant submitted a copy of general orders, dated 22 January 1969, wherein he was awarded the Silver Star for his actions in the Republic of Vietnam on 28 September 1968.  These orders were not assigned a number and do not contain the appropriate signature authority.  

8.  A search of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Silver Star.  No orders for this award were found in the ADCARS.

9.  A staff member from the Human Resources Command, Awards Branch, Alexandria, Virginia, verified that a stateside hospital would not have been given the authority to award the Silver Star.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

11.  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, as in this case, the Silver Star.  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 his files show he was awarded the Silver Star is acknowledged.  However, the orders the applicant provided are insufficient for the addition of the Silver Star to his DD Form 214.  These orders were not assigned a number and also do not contain the appropriate approving authority's signature required for authentication of award orders.  There was also no evidence found in his military records to support his request.  

2.  While the available evidence is insufficient for adding the Silver Star to his DD Form 214, 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 to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080012838



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ABCMR Record of Proceedings (cont)                                         AR20080012838


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