IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090002670 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart, the Army Commendation Medal (1st Oak Leaf Cluster), and the Bronze Star Medal with "V" Device.

2.  The applicant states that the awards are not listed on his DD Form 214.

3.  The applicant provides a copy of USARV Form 157-R (Recommendation for Decoration for Valor or Merit), dated 22 August 1968; a copy of a citation and General Orders Number 5861, issued by Headquarters, 4th Infantry Division, on 11 November 1968, showing award of the Army Commendation Medal; and a copy of General Orders Number 181, issued by Headquarters, 71st Evacuation Hospital, on 27 May 1968, showing award of the Purple Heart, in support of his 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.  A review of the applicant's records revealed that he was issued a DD Form 215 (Correction to DD Form 214) on 13 January 2009 that added awards of the Purple Heart and the Army Commendation Medal (1st Oak Leaf Cluster) and "V" Device to his DD Form 214.  Therefore, the issues of the Purple Heart and the Army Commendation Medal (1st Oak Leaf Cluster) and "V" Device will not be discussed further in the Records of Proceedings.

3.  The applicant’s records show he was inducted into the Army of the United States on 15 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 13 June 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his military service obligations.

4.  The applicant’s records show he served in the Republic of Vietnam from on or about 25 November 1967 to on or about 23 November 1968.  He was assigned to Company A, 1st Battalion, 8th Infantry.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, the Vietnam Service Medal with two bronze service stars, the Combat Infantryman Badge, and the Army Commendation Medal with "V" Device.  Item 24 does not show award of the Bronze Star Medal.  

6.  The applicant's records do not contain General Orders showing he was awarded the Bronze Star Medal with "V" Device.

7.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Bronze Star Medal with "V" Device orders on file for the applicant.  

8.  The applicant submitted a copy of a recommendation for award of the Bronze Star Medal with "V" Device, authored and authenticated by his company and battalion commanders, citing the following reason:

On 25 May 1968, Companies A and C from the 1st Battalion, 8th Infantry were set up in a firefight west of Dak To, Republic of Vietnam.  The firebase already had been hit by fierce North Vietnamese Army artillery, mortar, rocket, and small arms attack when a powerful ground assault managed to drive some of the members of Company C from their bunkers.  The enemy immediately occupied these bunkers.  Company A then sent a fifteen-man force against the enemy-held positions.  [Applicant] was a member of a five-man assault element which moved around the southwest slope of the hill to meet the oncoming enemy.  In a fierce exchange of small arms fire and close-in fighting, [Applicant] and his fellow infantrymen halted the enemy advance.  Then noticing Company C’s first sergeant lying wounded and exposed to enemy fire, [Applicant] immediately exposed himself to heavy enemy fire to aid in bringing the wounded men to safety.  Moving under intense enemy fire to the defense line set up to block further enemy advances, [Applicant] aided in repulsing the many enemy attempts throughout the night to overrun the outnumbered friendly forces positions.  The heavy casualties with which [Applicant] and the rest of the friendly element inflicted on the enemy were a major cause in the success of the early-morning counterattack which drove the remainder of the enemy elements from the hill.   

9.  On 25 September 1968, the approval authority downgraded the award and approved an award of the Army Commendation Medal with "V" Device.  

10.  There is no indication that the applicant was recommended for a second award of the Bronze Star Medal with "V" Device or that he was awarded any awards of the Bronze Star Medal with "V" Device.

11.  Army Regulation 600-8-22 (Military Awards) 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.  

12.  Army Regulation 600-8-22 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, formal recommendations, approval through the chain of command, and announcement in orders are required.
13.  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 contends that his DD Form 214 should be corrected to show award of the Bronze Star Medal with "V" Device.

2.  The ABCMR acknowledges and applauds the applicant's valor and courage on 25 May 1968 under extremely hazardous conditions; he is truly an American hero.  However, the decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority. 

3.  The applicant's company and battalion commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Bronze Star Medal with "V" Device. However, the approval authority appears to have approved a downgraded award and issued orders awarding the applicant the Army Commendation Medal with “V” Device instead.  

4.  There is no indication that the applicant was recommended for a second award of the Bronze Star Medal with "V" Device or that he was awarded any awards of the Bronze Star Medal with "V" Device.  The governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant the Bronze Star Medal with "V" Device.

5.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal with "V" Device 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:

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)                                         AR20090002670



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ABCMR Record of Proceedings (cont)                                         AR20090002670



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