IN THE CASE OF:
BOARD DATE: 21 May 2009
DOCKET NUMBER: AR20080019942
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 that he be awarded the Silver Star.
2. The applicant states that during a reunion, his former platoon sergeant told him that he had been put in for a Silver Star.
3. The applicant provides his Bronze Star Medal for Heroism certificate and orders, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), four pictures, a certificate of appreciation, and his honorable discharge certificate.
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 applicants 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 applicants 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 he was inducted into the Army of the United States on 14 February 1968, and he was awarded the military occupational specialty of light weapons infantryman (MOS) 11B. He served in Vietnam from 5 September 1968 to 15 August 1969.
3. The applicant was honorably released from active duty on 13 February 1970. His DD Form 214 shows that he was awarded the BSM with "V" Device, but he was not awarded the Silver Star.
4. The applicant's records do not contain the applicant's award recommendation.
5. Army Regulation 600-8-22 provides that the Silver Star is awarded for gallantry in action against the enemy. The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. 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. There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.
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 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 was awarded the BSM with "V" Device for his heroism, not the Silver Star.
2. If the applicant was recommended for a Silver Star, it is apparent that the recommendation was downgraded to a BSM with "V" Device. There is no error regarding such a downgrade. The higher level commander sees what awards and decorations are being approved for various valorous deeds and is in a better position to judge the level of decoration to be awarded.
3. While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects the applicants right to pursue his claim for the Silver Star 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 our Nation. The applicant and all Americans should be justifiably proud of his/her 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) AR20080019942
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ABCMR Record of Proceedings (cont) AR20080019942
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