IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20080019850 


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 two awards of the Army Commendation Medal (ARCOM) he received be upgraded to two awards of the Bronze Star Medal for Valor (correctly known as the Bronze Star Medal (1st Oak Leaf Cluster with "V" Device).  The applicant also requests award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and all other awards his unit received while in the Republic of Vietnam.

2.  The applicant states, in effect, that the awards of the ARCOM are an injustice because the degree of action in which he was involved while in the Republic of Vietnam qualifies him for a higher award.  He also contends that the Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all Vietnam veterans.

3.  The applicant provides orders for the ARCOM, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and part of his DA Form 20 (Enlisted Qualification Record) 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 was inducted into the Army of the United States on 29 August 1969.  He completed basic combat and advance individual training and was awarded military occupational specialty 16F (Light Air Defense Artillery Crewmember).  He served in the Republic of Vietnam from 22 January through 13 December 1970 while assigned to Battery A, 5th Battalion, 2nd Artillery.  He was honorably released from active duty on 27 August 1971.

3.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows among other awards the ARCOM with "V" Device and the ARCOM with 1st Oak Leaf Cluster.

4.  The available evidence does not show the applicant was recommended for award of the Bronze Star Medal.

5.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be 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, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, a formal recommendation, approval through the chain of command, and announcement in orders is required.

6.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

7.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service in Vietnam to Headquarters, United 

States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.  Department of the Army Pamphlet 672-3 does not show the applicant's unit received any other awards during the period from 22 January to 13 December 1970.

8.  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 contentions have been carefully reviewed and found to have partial merit. 

2.  Records clearly show the applicant was awarded the ARCOM with "V" Device and the ARCOM with 1st Oak Leaf Cluster in connection with military operations against a hostile force.  The applicant's leadership recognized his heroic actions; however, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that these actions rose to the level required for award of the Bronze Star Medal with "V" Device.  Absent such evidence, there is no basis to grant the applicant's request.

3.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal (1st Oak Leaf Cluster with "V" Device), this in no way affects the applicant's right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam, and its subordinate units, which included Battery A, 5th Battalion, 2nd Artillery.  Therefore, he is entitled to have his records corrected to show this unit award.


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 to his DD Form 214 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 upgrading the ARCOMs that the applicant was awarded to the Bronze Star Medal (1st Oak Leaf Cluster with "V" Device).  

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20080019850



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ABCMR Record of Proceedings (cont)                                         AR20080019850



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