IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20090000160 


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 award of the Silver Star.

2.  The applicant states, in effect, that the commanding officer of A Company, 2nd Battalion, 37th Infantry Regiment, 101st Airborne Division told the applicant that he submitted a Silver Star award recommendation for the applicant's gallant actions in combat on 3 October 1967 in the Republic of Vietnam.  He further states that he was told of the award recommendation while recovering in the hospital from wounds he received in action on 3 October 1967.  He states that when he was released from the hospital, he was reassigned to Fort McPherson, Georgia.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 29 October 1968.

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 personnel record shows that he enlisted in the Regular Army for a 3-year period on 8 October 1965.  He successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably released from active duty on 29 October 1968 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  The highest rank/grade he attained during his military service was sergeant/pay grade E-5. 

3.  The DD Form 214 he was issued shows he completed 3 years and 22 days of creditable military service, of which 4 months and 13 days was credited as foreign service in the Republic of Vietnam.  

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form shows he was awarded the Purple Heart.  Item 24 does not show award of the Silver Star. 

5.  Headquarters, 2nd Surgical Hospital (Mobile) Army Post Office, San Francisco, General Orders Number 108, dated 4 October 1967, awarded the applicant the Purple Heart for wounds received in action on 3 October 1967.

6.  There are no general orders in the applicant’s records that show award of the Silver Star.  

7.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing U. S. Army general orders issued between 1965 and 1973 for the Vietnam era, does not show award orders were published awarding the applicant the Silver Star. 

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

9.  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 requests award of the Silver Star.  He contends that his former company commander told him that he submitted a Silver Star award recommendation for the applicant's combat actions on 3 October 1967 in the Republic of Vietnam. 

2.  The applicant's military personnel record and the web-based ADCARS do not contain orders awarding him the Silver Star.  His record does show that he was wounded in action on 3 October 1967, that he was awarded the Purple Heart for injuries sustained on that date, that he was hospitalized, and returned to the United States.

3.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s 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 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)                                         AR20090000160





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ABCMR Record of Proceedings (cont)                                         AR20090000160



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