IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090003329 


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 that he was told by some friends during a reunion that he had been recommended for award of the Silver Star.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 April 1970, in support of his request.

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.  With prior enlisted service, the applicant's records show he was appointed as an aviation warrant officer in the U.S. Army Reserve and entered active duty on 24 October 1967.  He subsequently completed various rotary wing helicopter training courses and was awarded military occupational specialty 100B (Rotary Wing Pilot).  He was honorably released from active duty in the rank/grade of chief warrant officer 2 (CW2) on 23 April 1970 and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 13 November 1967 to on or about 7 November 1968.  He was assigned to Headquarters and Headquarters Company, 1st Brigade, 1st Cavalry Division.

4.  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 Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Marksman Marksmanship Qualification Badge with Pistol Bar (.45 Caliber), the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Air Medal (50th Oak Leaf Cluster), the Distinguished Flying Cross (1st Oak Leaf Cluster), the Army Commendation Medal with "V" Device, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Aviation Badge, the Good Conduct Medal, the National Defense Service Medal, and the Bronze Star Medal.  Item 24 does not show award of the Silver Star.

5.  The applicant's records do not contain General Orders awarding him the Silver Star.

6.  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 Silver Star orders on file for the applicant.  

7.  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 United States 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 records should be corrected to show award of the Silver Star.

2.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to awarding him the Silver Star.  

3.  Nevertheless, 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:

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)                                         AR20090003329



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ABCMR Record of Proceedings (cont)                                         AR20090003329



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