IN THE CASE OF:	  

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20080016861 


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 Army Commendation Medal (ARCOM), Armed Forces Service Medal (AFSM), Meritorious Unit Commendation (MUC), American Defense Commemorative Medal, Republic of Vietnam Service Commemorative Medal, Cold War Victory Commemorative Medal, Overseas Service Commemorative Medal, United States Army Commemorative Medal, Honorable Service Commemorative Medal, and all other awards to which he may be entitled.

2.  The applicant states, in effect, that during his service in 1971 he was recommended for award of the ARCOM.  However, this award is not reflected on his DD Form 214 (Report of Separation from Active Duty).  He further states he is requesting that his DD Form 214 be corrected to reflect his award of the ARCOM, the above mentioned awards, and all other awards to which he may be entitled.

3.  The applicant provides the following documents in support of his application:  self-authored statements, dated 18 September 2008 and 28 May 2008; Standard Form 180 (Request Pertaining to Military Records); DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 September 1970; DD Form 214 for the period ending 13 August 1974; U.S. Army Aviation School Diplomas, dated 15 September 1969 and 9 October 1969; Honorable Discharge Certificates; and National Personnel Records Center letter, dated 6 August 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 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 commemorative medals – the American Defense Service Commemorative Medal, Republic of Vietnam Defense Commemorative Medal, Cold War Victory Commemorative Medal, Overseas Service Commemorative Medal, United States Army Commemorative Medal, and the Honorable Service Commemorative Medal – that the applicant has requested be awarded to him are not governed by Army Regulation 600-8-22 (Military Awards).  These medals are made available by commercial resources, and since they are not governed by the applicable regulation, these commemorative medals are not shown on a discharge document, and hence, they will not be discussed further in these Proceedings.

3.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 8 May 1969.  He served for a period of 1 year, 3 months, and 25 days until being honorably discharged on 2 September 1970 for the purpose of immediate reenlistment.

4.  The DD Form 214 he was issued at the time of his discharge shows in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) that during his active duty tenure he earned the following awards:  Vietnam Service Medal (VSM), National Defense Service Medal (NDSM), and Aircraft Crewman Badge.

5.  On 3 September 1970, the applicant reenlisted in the RA for a period of 3 years.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was assigned to the 90th Replacement Company in the Republic of Vietnam (RVN) from 24 April through 29 April 1970.  It also shows he was reassigned and served in Okinawa from 30 April 1970 through 12 August 1974.  During his tour in Okinawa, he was assigned to the 531st Transportation Company from 30 April 1970 through 13 May 1971 performing duties in military occupational specialty (MOS) 64B as a heavy vehicle driver.  It also shows he was assigned to the Post Transportation Company, Okinawa, from 14 May 1971 through 4 October 1972, performing duties in MOS 64B and in MOS 64C as a motor transport operator.  It further shows he was assigned to the U.S. Army Transportation Operation, Okinawa, from 5 October 1972 through 3 February 1974.

7.  Item 41 (Awards and Decorations) of the DA Form 20 shows that during his active duty tenure, he earned the NDSM, Aircraft Crewman Badge, VSM, MUC, Army Good Conduct Medal (AGCM), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

8.  The applicant’s record contains no orders or documents that indicate he was ever recommended for or awarded the ARCOM by a proper authority while serving on active duty.

9.  On 13 August 1974, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group to complete his military service obligation.  During this tenure of service the applicant completed 3 years, 5 months, and 5 days of active military service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the: AGCM, NDSM, VSM, Aircraft Crewman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the MUC.

10.  During the processing of this case, a member of the Board’s staff reviewed the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, which failed to reveal any orders for the ARCOM pertaining to the applicant.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-21 contains guidance on the AFSM.  It states, in pertinent part, that the AFSM is awarded to members of the Armed Forces of the United States who, after 1 June 1992, participate, or have participated, as members of U.S. military units in a U.S. military operation that is deemed to be a significant activity and encounter no foreign armed opposition or imminent threat of hostile action.

12.  Paragraph 3-17 of Army Regulation 600-8-22 contains guidance on the ARCOM.  It states, in pertinent part, that the ARCOM is awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  Award may be made to a member of the Armed Forces of a friendly foreign nation who, after 1 June 1962, distinguishes himself or herself by an act of heroism, extraordinary achievement, or meritorious service which has been of mutual benefit to a friendly nation and the United States.

13.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 applicant's contention that he was recommended for the ARCOM was carefully considered.  However, his records are void of any orders or other documents showing he was ever recommended for or awarded the ARCOM by proper authority while serving on active duty.  Furthermore, there are no ARCOM orders in the ADCARS.  As a result, the regulatory burden of proof necessary to support award of the ARCOM has not been satisfied in this case.

2.  While the available evidence is insufficient for awarding the applicant the ARCOM, this in no way affects the applicant’s right to pursue his claim for the ARCOM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

3.  The applicant's contention of entitlement to the AFSM was carefully considered.  However, by regulation, the AFSM is not authorized for members who participated in military operations deemed a significant activity prior to 1 June 1992.  Therefore, even if the applicant met the basic eligibility requirements for the AFSM, it was not authorized during the period he served on active duty.  Therefore, given there are regulatory provisions prohibiting retroactive award of the AFSM, there is an insufficient evidentiary basis to support granting the requested relief.

4.  The applicant's contention of entitlement to the MUC was also carefully considered.  However, the evidence of record confirms the applicant's award of the MUC is already documented on his DD Form 214 dated 13 August 1974.  Therefore, there appears to be no error or injustice related to his award of the MUC.

5.  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.

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)                                         AR20080016861



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ABCMR Record of Proceedings (cont)                                         AR20080016861



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