IN THE CASE OF:	  

		BOARD DATE:	       17 March 2009

		DOCKET NUMBER:  AR20080016523 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Silver Star.

2.  The applicant states that he was awarded the Silver Star as an impact award for his actions on 3 April 1968 and that it was presented to him by Major General John J. Tolson.  He adds that after his release from active duty in December 1968, he received a certificate, dated 9 November 1968, for the Silver Star decoration. 

3.  The applicant provides a copy of a certificate, dated 9 November 1968, showing award of the Silver Star; copies of two photographs of an award ceremony; and a copy of the narrative description of the applicant’s gallantry in action, authored by his battalion commander, in support of his request. 

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 records show he was inducted into the Army of the United States on 13 December 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry).  He was honorably released from active duty on         12 December 1968 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  The highest rank/grade he attained during his tenure of active duty service was specialist four (SP4)/pay gradeE-4.

3.  The applicant's records further show he served in the Republic of Vietnam from on or about 6 June 1967 to on or about 4 June 1968.  He was assigned to A Company, 2nd Battalion, 7th Cavalry, 1st Cavalry Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Purple Heart, the Republic of Vietnam Campaign Medal with Device (1960), the Good Conduct Medal, the Air Medal, the Bronze Star Medal (1st Oak Leaf Cluster), and the Combat Infantryman Badge.  Item 24 does not show award of the Silver Star.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show he was awarded the Silver Star.  Furthermore, there are no General Orders in the applicant's records that show he was awarded the Silver Star.

6.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Silver Star orders on file for the applicant.  

7.  The applicant submitted a copy a certificate, dated 9 November 1968, that shows he was awarded the Silver Star for gallantry in action on 3 April 1968 in the Republic of Vietnam.  The certificate is signed by Major General George I. 
Forsythe, Commanding General, 1st Cavalry Division (Airmobile).  He also submitted a copy of the narrative description of his gallantry in action, authored by his battalion commander, as follows:

On 3 April 1968, the second platoon of Company A, 2nd Battalion, 7th Cavalry, was moved up Highway 8, approximately 9 kilometers west of Khe Sanh where the third platoon had been ambushed and pinned down by a North Vietnamese Army force using heavy machine guns and automatic weapons.  As the second platoon approached, it was taken under heavy fire and pinned down.  At this time, [Applicant] exposed himself to intense machine gun fire in order to move to where the lead elements of the third platoon were stranded.  Previous attempts had resulted in one man being killed.  As [Applicant] reached the lead elements, he immediately took the fallen mans’ (sic) machine gun and began placing a devastating volume of fire on the enemy machine gun position in order for the men from the third platoon to pull back.  The enemy position was no more than thirty meters to [Applicant’s] front and had been placing a murderous crossfire on the platoons with the aid of several other automatic weapons positions. As the word was given to withdraw, so the area could be saturated with artillery, [Applicant] threw his own rifle to another man and took the machine gun and moved directly to the highway in order to provide covering fire for the platoons as they withdrew.  When [Applicant], who had no cover for himself, began firing, the rest of the men began pulling back.  [Applicant] placed such a murderous fire on the enemy, that all of the men reached safety easily and at the same time. [Applicant] silenced several enemy positions.  Not until all had reached safety, did [Applicant] pull back himself, still placing heavy fire on the North Vietnamese Army force as he withdrew.  [Applicant’s] actions at the risk of his own life, were essential in recovering the wounded mans’ (sic) body and his equipment, while at the same time allowing several pinned down men to withdraw and inflicting heavy casualties on the enemy.

8.  Army Regulation 672-5-1 (Military Awards), then in effect, set forth Department of the Army criteria, policy and instructions concerning individual military awards, the Good Conduct Medal, service medals and service ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments.  This regulation was supplemented by US Army Vietnam (USARV) Regulation 672-1 which provided, in Appendix I (Criteria for Award of Individual Decorations), that the Silver Star was awarded to recognize gallantry in action against the enemy which 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.  Appendix I also provided that the Silver Star could be awarded by Division Commanding Generals.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to correction of his DD Form 214 to show award of the Silver Star, along with the supporting documentation he submitted, were carefully considered; however, there is insufficient evidence to grant him the requested relief.

2.  The applicant did not provide a copy of the orders awarding him the Silver Star.  Despite a thorough review of the applicant’s records and a search of the ADCARS index of general orders issued during the Vietnam era, no orders were found.  The ABCMR does not dispute the applicant’s account of his valorous acts of 3 April 1968; however, without the orders, the requested correction cannot be accomplished.  The certificate and the narrative description of his actions are not sufficient.

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)                                         AR20080016523



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ABCMR Record of Proceedings (cont)                                         AR20080016523



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