IN THE CASE OF:	

		BOARD DATE:	16 June 2009  

		DOCKET NUMBER:  AR20080019668 


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 Silver Star (SS) Medal and any other earned awards be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 8 July 1971.  

2.  The applicant states, in effect, that he was awarded the SS; however, it was never annotated on his DD Form 214 

3.  The applicant provides the following documents in support of his application:  DD Forms 214, dated 8 July 1971 and 7 May 1982; Authorization for Issuance of Awards (DA Form 1577); and DA Form 20 (Enlisted Qualification Record),
Page 4.  

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 15 July 1968, and that he was trained in and awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).  His record further shows that specialist five (SP5) is the highest grade he attained while serving on active duty. 

3.  The applicant's DA Form 20 shows he served in the Republic of Vietnam (RVN) from 26 June 1969 through 25 June 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters Service Battery (HSB), 1st Battalion, 77th Artillery Regiment, 1st Cavalry Division, performing duties in MOS 63B as a wheel vehicle repairman.  It also shows he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Purple Heart (PH), Republic of Vietnam Campaign Medal (RVNCM) with Device (1960), Vietnam Service Medal (VSM), Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade and Rifle (M-14) Bar.  His record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

5.  The applicant's record is void of any orders or other documents that show the applicant was ever recommended for or awarded the SS by proper authority while serving on active duty.  

6.  On 8 July 1971, the applicant was honorably released from active duty (REFRAD), in the rank of SP5, after completing 2 years, 11 months, and 
24 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued upon his REFRAD shows he earned the following awards during his tenure on active duty:  NDSM, VSM, PH, RVNCM, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Badge.  

7.  The applicant provides an Authorization for Issuance of Awards (DA Form 1577), dated 10 April 2002 .  This document shows the applicant is entitled to award of the Valorous Unit Award with 1 silver service star.


8.  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, that a bronze service star is authorized with this award for each RVN campaign a member is credited with participating in.  

9.  Chapter 3 (United States Army Individual Decorations), Paragraph 3-1, states, in pertinent part, that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  

10.  Paragraph 3-10 of the awards regulation states, in pertinent part, that the 
SS is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction. 

11.  Chapter 4 of the same regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

12.  Paragraph 7-7, of the awards regulations states, in pertinent part, that an Oak Leaf Cluster is authorized for wear for each additional award of the Valorous Unit Award.  Paragraph 7-14 states, in pertinent part, that the VUA is awarded to units of the Armed Forces of the United States and cobelligerent nations for extraordinary heroism in action against an armed enemy of the United States while engaged in military operations involving conflict with an opposing foreign force or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party for actions occurring on or after 3 August 1963.  It further states that the degree of heroism required is the same as that which would warrant award of the SS to an individual.  


13.  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 (HSB, 1st Battalion, 77th Artillery Regiment) earned the RVN Gallantry Cross with Palm Unit Citation, RVN Civilian Actions Honor Medal with First Class Unit Citation, and two awards of the VUA.  It also shows that during the applicant's assignment tenure in the RVN, participation credit was granted for the Vietnam Summer-Fall, Vietnam Winter-Spring, and Sanctuary Counteroffensive campaigns.

14.  Title 10 of the 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 the SS should be added to his record and DD Form 214 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  The evidence of record is void of any orders or other documents confirming the applicant was ever recommended for or awarded the SS by proper authority while serving on active duty.  Absent an award recommendation with supporting documentation, there is an insufficient evidentiary basis to support granting the requested relief.

3.  While there is insufficient documentation and evidence for awarding the applicant the SS, this in no way affects the applicant’s right to pursue his claim for award of the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130. 

4.  A review of the evidence reveals that the applicant's belief that he was awarded the SS may be based on the 4 October 2004 DA Form 1577 he provided, which erroneously indicates he was entitled to the VUA with a silver service star.  By regulation, the VUA is a unit and not an individual award, and that an Oak Leaf Cluster, not a silver service star, is issued to denote a second and subsequent award of the VUA.  As a result, the DA Form 1577 he received contained an erroneous VUA entry and should have shown he was eligible for the VUA with 1st Oak Leaf Cluster (2nd Award), which should now be added to his record and DD Form 214.  

5.  The applicant's record also confirms he received "excellent" conduct and efficiency ratings at all of his active duty assignments and his record is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the first award of the AGCM, for his qualifying period of honorable active duty service from 15 July 1968 through 8 July 1971.

6.  Further, the record shows that based on his service and campaign participation in the RVN, the applicant is also eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation and 3 bronze service stars with his VSM.  Thus, these awards should also be added to his record and separation document.

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 

	a.  awarding him the Army Good Conduct Medal, for his qualifying period of honorable active duty service from 15 July 1968 through 8 July 1971;

	b.  amending item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry "National Defense Service Medal, Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Valorous Unit Award 1st Oak Leaf Cluster (2nd Award), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, Sharpshooter Marksmanship Qualification Badge with Grenade and Rifle (M-14) Bars"; and 

	c.  providing him a correction to his separation document that reflects these changes.

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 Silver Star.  




      _______ _   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)                                         AR20080019668



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ABCMR Record of Proceedings (cont)                                         AR20080019668



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