IN THE CASE OF:	  

		BOARD DATE:	  5 March 2009

		DOCKET NUMBER:  AR20080017982 


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 the Bronze Star Medal (BSM) and the 
Air Medal (AM) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, his DD Form 214 and correction (DD Form 215) does not include the BSM and the AM he earned.   

3.  The applicant provides a Standard Form (SF) 180 (Request Pertaining to Military Records); DD Form 214; DD Form 215; and AM orders, certificate, and citation in support of his 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 record shows that he was inducted into the Army of the United States and entered active duty on 27 May 1968.  He was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and later reclassified into MOS 12B (Combat Engineer).  

3.  The applicant's record shows that he served in the Republic of Vietnam (RVN) from 16 October 1968 through 16 October 1969, and that during his RVN tour he was assigned to Company A, 4th Battalion, 21st Infantry Regiment, performing duties in MOS 11B as a light weapons infantryman, assistant gunner, and rifleman.  

4.  The applicant's record contains Headquarters, Americal Division General Orders Number 9469, dated 17 September 1969, which awarded the applicant the Army Commendation Medal (ARCOM) for meritorious service in the RVN from October 1968 through October 1969.  There are no BSM orders on file in his record.  

5.  On 26 May 1970, the applicant was honorably released from active duty (REFRAD), in the rank of specialist five (SP5), after completing a total of 2 years of active military service.  The DD Form 214 he was issued at the time, as amended by a DD Form 215 issued on 20 November 2002 as a result of action by this Board, shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Purple Heart with 1st Oak Leaf Cluster; ARCOM; Army Good Conduct Medal; Vietnam Service Medal with 4 bronze service stars; Vietnam Campaign Medal; RVN Gallantry Cross with Palm Unit Citation; Combat Infantryman Badge; Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar; Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar; and 2 Overseas Service Bars.  

6.  The applicant provides Headquarters, Americal Division General Orders Number 8327, dated 22 August 1969, which awarded him the AM for meritorious achievement while participating in aerial flight from 12 November 1968 through 15 June 1969, and the certificate and citation for this award.  In the SF 180 provided by the applicant, he confirms he has no documentation for the BSM.  

7.  Review of 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, failed to reveal any orders for the BSM pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy and states, in pertinent part, that only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service. 

9.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM and states, in pertinent part, that it may be awarded for meritorious service or achievement.  Paragraph 3-17 of the awards regulation contains guidance on award of the Army Commendation Medal and states, in pertinent part, that it may be awarded for meritorious achievement or service and acts of valor that are of a lesser degree than required for award of the BSM.  Paragraph 3-19 contains the rules for processing award recommendations and states, in pertinent part, that a DA Form 638 will be used to initiate, process, and approve recommendations for Army individual decorations.  It further states that the designated award approval authority must approve the award on the DA Form 638 submitted.  Table 3-6 identifies the wartime award approval authorities and identifies the Senior Army Commander and commanders of a separate force serving in the rank of lieutenant general as the approval authority for the BSM.  It also allows further delegation of BSM approval to major general or brigadier general (serving in MG positions) commanders of separate units.  

10.  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 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 the AM should be added to his record and to the list of awards contained on his DD Form 214, as amended, was carefully considered and found to have merit.  The AM orders, certificate, and citation provided by the applicant are sufficiently credible to support a conclusion that the applicant was in fact awarded the AM while serving in the RVN.  Therefore, it would be appropriate to add this award to his record and separation document at this time.

2.  The evidence of record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the BSM by proper authority while serving on active duty.  Further, given he was awarded the ARCOM for meritorious service for his tour the RVN, award of the BSM for this same period of meritorious service would be a duplicate award and prohibited by regulation.

3.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal for meritorious achievement or heroism (valor), this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal 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 adding the Air Medal to his record and the list of awards contained on his DD Form 214 and by providing him a correction to his DD Form 214 that includes this award. 

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 awarding or adding the Bronze Star Medal to his record and DD Form 214.



      ________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)                                         AR20080017982



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ABCMR Record of Proceedings (cont)                                         AR20080017982



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