IN THE CASE OF:	  

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080016900 


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), Vietnam Service Medal (VSM), Republic of Vietnam Campaign Medal (RVNCM), Distinguished Flying Cross, and the Expert Marksmanship Qualification Badge with Grenade Bar.

2.  The applicant states, in effect, that he served his country earning the above mentioned medals and they should be accurately reflected on his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides the following documents in support of his application:  National Personnel Records Center Letter, dated 27 October 2008; a Standard Form 180 (Request Pertaining to Military Records); DD Form 214; and two Department of Army Review Boards Agency Letters, dated 18 May 2007 and      25 July 2007.

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 record shows he enlisted in the Regular Army and entered active duty on 16 July 1970.  He was trained in and awarded military occupational specialty (MOS) 67N (Helicopter Repairman).  

3.  The applicant's Military Personnel Record Jacket (MPRJ) contains Headquarters, 101st Airborne Division (Airmobile), General Orders Number 10689, dated 16 November 1971.  This document awarded him the Bronze Star Medal for his meritorious service in the Republic of Vietnam (RVN) while assigned to Company B, 158th Aviation Battalion, during the period January 1971 through January 1972. 

4.  The applicant's MPRJ contains a letter composed by his commander at the North Dakota, Army National Guard (NDARNG), dated 13 February 1973, addressed to the United States Army Reserve Components Personnel Center (USARCPAC), Awards and Decorations Section, St Louis, Missouri.  This document shows the applicant's commander requested the USARCPAC issue the applicant the ARCOM orders he was to have received for his period of active duty service with the 158th Aviation Battalion during the period 16 July 1970 through 26 January 1972.  

5.  The applicant's MPRJ also contains a letter sent by USARCPAC to his commander at the NDARNG dated 14 March 1973, informing him that  
no records had been found on the applicant showing he had ever been recommended for or awarded the ARCOM.  

6.  The applicant's MPRJ is void of any orders or other documents showing he qualified and was awarded the Expert Marksmanship Qualification Badge with Grenade Bar.

7.  On 26 January 1972, the applicant was honorably released from active duty and transferred to the ARNG.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 6 months, and 11 days of active military service.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar during his tenure on active duty.

8.  On 25 July 2007, a DD Form 215 was issued to the applicant that added the Bronze Star Medal, Air Medal with Numeral 12, Distinguished Flying Cross, Aircraft Crew Member Badge, and the Army Good Conduct Medal to Item 24 of his original DD Form 214.  

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, the VSM is awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace there over, after 
3 July 1965 through 28 March 1973.  It further states a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in.  Table B-1 contains a list of RVN campaigns and it shows that during the applicant's tenure of assignment in the RVN, participating credit was granted for the Vietnam Winter-Spring, Sanctuary Counteroffensive, and the Vietnam Counteroffensive Phase VII campaigns.  

10.  Paragraph 9-13 of the awards regulation contains guidance on award of the Republic of Vietnam Campaign Medal with Device (1960).  It states, in pertinent part, that this award is authorized for members who served in the RVN for 
6 months or more during the period 1 March 1961 through 28 March 1973.  	

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Battalion 158th Aviation Battalion) earned the Presidential Unit Citation and the RVN Gallantry Cross with Palm Unit Citation.  

12.  Title 10, U.S. Code, section 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.  The applicant's contention of entitlement to award of the VSM and RVNCM was carefully considered and found to have merit.  

2.  The evidence of record confirms that based on his RVN service and campaign participation, the applicant is entitled to the VSM with 3 bronze service stars, RVN Campaign Medal with Device (1960), Presidential Unit Citation, and the RVN Gallantry Cross with Palm Unit Citation. 

3.  The applicant's contention of entitlement to the Distinguished Flying Cross was carefully considered and found to have merit.  However, the evidence of record confirms the applicant was issued a DD Form 215, on 25 July 2007, which added the Distinguished Flying Cross to Item 24 of his original DD Form 214.  
Therefore, there appears to be no error or injustice in regards to this award.  A copy of the DD Form 215 will be provided to the applicant.

4.  The applicant's request for award of the Expert Marksmanship Qualification Badge with Grenade Bar was carefully considered.	  However, the applicant's MPRJ contains no orders or other documents showing he qualified for award of the Expert Marksmanship Qualification Badge with Grenade Bar.  Therefore, there is insufficient evidence to grant the requested relief at this time.
 
5.  The applicant's request for award of the ARCOM was carefully considered.	 However, the applicant's MPRJ contains no orders or other documents showing he was recommended for or awarded the ARCOM.  Therefore, there is insufficient evidence to grant the requested relief at this time.  

6.  However, while the available evidence is insufficient for awarding the applicant an 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 dated 26 January 1972 by adding the Vietnam Service Medal with 3 bronze service stars and the Republic of Vietnam Campaign Medal with Device 1960.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Army Commendation Medal and the Expert Marksmanship Qualification Badge with Grenade Bar.



      _________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)                                         AR20080016900



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ABCMR Record of Proceedings (cont)                                         AR20080016900



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