IN THE CASE OF:
BOARD DATE: 20 November 2008
DOCKET NUMBER: AR20080013875
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 award of the Bronze Star Medal. He also requests, in effect, that a duty assignment in Vietnam be shown on his DD Form 214 (Report of Transfer or Discharge).
2. The applicant states, in effect, that he received the Bronze Star Medal but it was taken away from him by his first sergeant. He contends that he killed more than 15 Viet Cong by himself and that his actions were in the Stars and Stripes in 1969/1970. He also states that during his first tour in Vietnam he was assigned to a base camp that is not listed on his DD Form 214.
3. The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim), dated 28 July 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted on 10 June 1969 for a period of 3 years. He served in Vietnam from January 1970 through December 1970 and from November 1971 through February 1972. On 11 February 1972, he was released from active duty.
3. The applicants DD Form 214 does not show the Bronze Star Medal as an authorized award. Item 12 (Last Duty Assignment and Major Command) on his DD Form 214 shows the 403rd Transportation Company in Vietnam.
4. There are no orders for the Bronze Star Medal in the available records.
5. A search of the U.S. Army Human Resource Command's Awards and Decorations Computer Assisted-Retrieval System did not locate orders awarding the applicant the Bronze Star Medal.
6. Item 38 (Record of Assignments) on the applicants DA Form 20 (Enlisted Qualification Record) shows his last duty assignment was the 403rd Transportation Company in Vietnam.
7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.
8. Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214. There is no provision to enter duty assignments, or any assignment other than the unit of assignment upon separation, on the DD Form 214.
9. 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. There is no evidence of record which shows the applicant was awarded the Bronze Star Medal. Therefore, there is insufficient evidence on which to base award of the Bronze Star Medal in this case.
2. While the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects the applicants right to pursue his/her claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.
3. Since there is no provision to show duty assignments on the DD Form 214, other than the last duty assignment and major command, there is no basis for granting the applicants request to show a duty assignment during his first tour in Vietnam on his DD Form 214.
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.
_______ _ XXX _______ ___
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) AR20080013875
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