IN THE CASE OF:
BOARD DATE: 25 June 2009
DOCKET NUMBER: AR20090002661
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 his Army Commendation Medal with "V" Device be upgraded to the Silver Star.
2. The applicant states, in effect, he was recommended for the Silver Star but it was denied because he was a medic and it was part of his job.
3. The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and orders for award of the Army Commendation Medal with "V" Device 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 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 enlisted in the Regular Army on 2 December 1968 and successfully completed basic combat and advanced individual training. Upon completion of training he was awarded military occupational specialty 91B (Medical Specialist). He served in Vietnam from 28 May 1969 through 27 May 1970 and was honorably released from active duty on 1 December 1970.
3. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Combat Medical Badge, two overseas service bars, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal with "V" Device, the Army Commendation Medal with "V" Device, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) as authorized awards.
4. There is no evidence of record which shows the applicant was recommended for award of the Silver Star.
5. 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.
6. 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 contends that he was recommended for the Silver Star but it was denied. He also contends that the Army Commendation Medal with "V" Device he was awarded should be upgraded to the Silver Star. However, there is no evidence in the applicant's records which shows he was recommended for the Silver Star.
2. In accordance with the applicable regulation, the Silver Star is awarded for gallantry in action against the enemy. The required gallantry must have been performed with marked distinction. While the applicant's courage and valor were unquestionable, it does not appear that his actions merit an upgrade of the Army Commendation Medal with "V" Device to the Silver Star.
3. While the available evidence is insufficient for upgrading the applicant's Army Commendation Medal with "V" Device to the Silver Star, this in no way affects the applicant's right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.
4. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___________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) AR20090002661
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ABCMR Record of Proceedings (cont) AR20090002661
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