IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017876 


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, that he be awarded the Bronze Star Medal with "V" (for Valor) Device. 

2.  The applicant essentially states that he was in an armored personnel carrier (APC) when it was hit by a rocket-propelled grenade in June or July of 1969, and that a lieutenant and driver were both trapped inside of the burning vehicle.  He also states that he managed to remove both of them, but that they later died from the injuries they received.  He further states that both of his arms were burnt while removing them from the APC, and that he was informed that he would be receiving the Bronze Star Medal with "V" Device.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty service from 30 August 1976 to 29 May 1985 in support of this 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 was honorably discharged from the Regular Army on 29 May 1985 after completing 16 years, 6 months, and 14 days of active Federal service and attaining the rank and pay grade of staff sergeant/ E-6.  His overseas service included a tour in Vietnam from January 1969 to January 1970, two tours in Germany, and a tour in Hawaii.  The DD Form 214 that was issued to him at the time of his discharge on 29 May 1985 essentially shows that he was awarded the Purple Heart, the Meritorious Service Medal, the Army Commendation Medal, the Good Conduct Medal (5th Award), the National Defense Service Medal, the Vietnam Service Medal with four bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Noncommissioned Officer Professional Development Ribbon with Numeral "3," the Army Service Ribbon, the Overseas Service Ribbon with Numeral "2," the Combat Medical Badge, the Driver and Mechanic Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  His military records contained a certificate awarding him the Purple Heart for wounds received in action in Vietnam on 18 July 1969, and item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record – Part II) essentially shows that he received a shrapnel wound to his left knee in July 1969.

3.  The applicant's military records do not show that he was awarded the Bronze Star Medal.  There are no orders in his military records which awarded him the Bronze Star Medal, and although a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, produced over 60 general orders for Soldiers with the same first and last name as the applicant, none of these general orders pertained to the applicant.

4.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.  This regulation also provides, in pertinent part, that the "V" Device is worn to denote participation in acts of heroism involving conflict with an armed enemy.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

6.  Title 10 of the U.S. Code, section 1130 (10 USC 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 contends that he should be awarded the Bronze Star Medal with "V" Device.

2.  The sincerity of the applicant's claim that he was informed that he would be receiving the Bronze Star Medal with "V" Device is not questioned.  However, all awards of the Bronze Star Medal with "V" Device must be announced in official orders, which the applicant did not provide, and are not in his military records.  Additionally, although the applicant stated that both of his arms were burnt while removing a lieutenant and a driver from a burning APC, there is no evidence in his military records which can corroborate his statement.  Regrettably, in view of the foregoing, there is insufficient basis for awarding the Bronze Star Medal with "V" Device to the applicant in this case.  However, the applicant is advised that while the available evidence is insufficient for awarding the applicant him the Bronze Star Medal with "V" Device, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be proud of his service in arms.



      ________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)                                         AR20080017876



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ABCMR Record of Proceedings (cont)                                         AR20080017876



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