IN THE CASE OF:	  

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080013214 


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 Medal of Honor (MOH) or other high award and any other awards to which he is entitled.

2.  The applicant states that he believes that he was recommended for the MOH or other high award but he never received it.  He also states that it is his belief that he did not receive all of the awards for which he was nominated.

3.  The applicant provides no additional documentary evidence 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.  The applicant's military records show that he enlisted in the Regular Army (RA), on 16 May 1963 and continuously served until he was honorably discharged for the purpose of immediate reenlistment on 18 January 1965.  The separation document (DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) issued at that time shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and a Letter of Commendation during the period covered by the DD Form 214 (16 May 1963-18 January 1965).

3.  On 19 January 1965, the applicant reenlisted in the RA for six years and remained serving on active duty in that status.  His record shows he held and served in military occupational specialty 62N (Construction Machine Supervisor), and that the highest rank he attained while serving on active duty was staff sergeant.

4.  The applicant's Enlisted Qualification Record (DA Form 20) includes entries in item 31 (Foreign Service) which show that he served in Korea from 16 October 1963 to 27 October 1964, and in the Republic of Vietnam (RVN) from 18 January 1969 to 16 January 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to the 501st Engineer Battalion.

5.  The applicant's Official Military Personnel File is void of any orders or other documents that show he was ever recommended for or awarded the MOH or any other awards not listed in his record during his active duty tenure.

6.  On 18 January 1971, the applicant was honorably discharged after completing a total of 7 years, 8 months, and 3 days of active military service.  The DD Form 214 he was issued shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he earned the following awards:  National Defense Service Medal, Army Commendation Medal (ARCOM), Army Good Conduct Medal (First Award), Vietnam Service Medal with 2 bronze service stars, RVN Campaign Medal with Device (1960), 2 Overseas Service Bars, Expert Marksmanship Qualification Badge with Rifle (M-14) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-1) Bar.  The applicant authenticated the DD Form 214 with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his discharge.


7.   Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Chapter 1, section III, contains guidance on the principles and standards of the Army’s awards policy.  It states, in pertinent part, that the policy allows award authorities to recognize Soldiers for valor, meritorious service, and achievement, and to document and record that recognition for historical purposes.  Awards recommendations are normally submitted using a DA Form 638 (Recommendation for Award).

8.  Paragraph 1-14 of the awards regulation contains guidance on time limitations for award recommendations.  It states, in pertinent part, that except for the provisions of section 1130, Title 10 of the U.S. Code (10 USC 1130), each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  Submission into military channels is defined as "signed by the initiating official and endorsed by a higher official in the chain of command."  However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  Based upon such review, the Secretary of the Army will make a determination as to the merits of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting under 10 USC 1130.

9.  Paragraph 3-7 of the awards regulation provides guidance on award of the MOH.  It states, in pertinent part, that it is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States, while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was recommended for the MOH or some other high award and that his record should be corrected to show all awards to which he may be entitled was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the MOH or any other award higher than the ARCOM listed in his record by proper authority while serving on active duty.  Further, there are no documents on file or provided by the applicant that provide incontestable proof that he performed a deed of personal bravery or self-sacrifice so conspicuous as to clearly distinguish him above his comrades or that involved risk to his life as is required by regulation to support award of the MOH.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  While the available evidence is insufficient to support award of the MOH and/or any other awards higher than the ARCOM listed on the applicant’s record, it is noted that the applicant has not yet exhausted all remedies available to him under the law in pursuing these awards.  By law, he may pursue his claim to the MOH and/or other awards higher than the ARCOM by submitting a request with an award recommendation and supporting evidence through his member of Congress under the provisions of 10 USC 1130, which is an option he may still wish to pursue.

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)                                         AR20080013214



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ABCMR Record of Proceedings (cont)                                         AR20080013214



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