IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090004983 


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, the Purple Heart (PH) with 1st Oak Leaf Cluster (2nd Award), Combat Infantryman Badge (CIB), and Air Medal (AM) with "V" (Valor) Device be added to his record.  He also requests award of the Distinguished Flying Cross (DFC).

2.  The applicant states, in effect, he received two AM awards for valor, which were his 13th and 27th awards of the AM.  He claims both valor awards were made for direct combat action with the enemy and given a Soldier is not entitled to receive multiple "V" Devices with the same decoration, one "V" Device should be upgraded to the DFC and the other "V” Device should be upgraded to another award other than the AM.  The applicant is also requesting to be awarded the CIB based on his involvement in counterinsurgency operations in the Military Assistance Command, Vietnam (MACV).

3.  The applicant provides a Department of Veterans Affairs (VA) letter, dated
1 February 2006; multiple AM orders dated between 18 October 1966 and
20 May 1967; and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 May 1967 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.  The applicant's record shows he enlisted in the Regular Army (RA) on
5 August 1964.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 1 September 1965 to 9 May 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A, 502nd Aviation Battalion from 6 September 1965 through
22 September 1966; and to the 175th Aviation Company from 23 September 1966 through 6 May 1967; and that in both units he performed duties in MOS 11B as an aerial helicopter door gunner.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards:  Expert Marksmanship Qualification Badge with Rifle Bar, AM (26th Oak Leaf Cluster [27th Award]), PH, Vietnam Service Medal (VSM), National Defense Service Medal (NDSM), and RVN Campaign Medal with Device (1960).

5.  The applicant's Official Military Personnel File (OMPF) contains the following General Orders (GO) authorizing AM awards:  Headquarters, 1st Aviation Brigade GO Number 1370, dated 22 September 1966, which awarded him the AM (13th Oak Leaf Cluster) with "V" Device for heroism in the RVN during the period 23 to 24 April 1966; Headquarters, 1st Aviation Brigade GO Number 1662, dated 5 May 1967, which awarded him the AM (27th Oak Leaf Cluster) with "V" Device, for heroism in the RVN on 15 February 1967; and Headquarters, 
1st Aviation Brigade, GO Number 1931, dated 20 May 1967, which awarded the applicant the AM (32nd Oak Leaf Cluster [33th Award]).

6.  The OMPF also contains the following GOs that awarded the applicant the PH:  Headquarters, 1st Aviation Brigade, GO Number 698, dated 3 February 1966, which awarded him the PH for being wounded in action in the RVN on
31 January 1966; and Headquarters, 1st Aviation Brigade, GO Number 648, dated 18 October 1966, which awarded him the PH for being wounded in action in the RVN on 24 May 1966.

7.  The applicant's OMPF is void of any orders or other documents that show he was ever recommended for or awarded the CIB by proper authority while serving on active duty.

8.  On 10 May 1967, the applicant was honorably released from active duty, in the rank/grade of specialist four (SP4)/E-4, after completing a total of 2 years,
9 months, and 6 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 he was issued at the time shows that he earned the following awards: NDSM, RVNCM, Expert Marksmanship Qualification Badge with Rifle Bar, VSM, PH, and AM (26th Oak Leaf Cluster).

9.  A DD Form 215 (Correction to DD Form 214), dated 16 September 1987, amended item 24 of the applicant's original DD Form 214 by deleting the VSM and adding the VSM with 3 bronze service stars, Army Good Conduct Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

10.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 8-6 contains guidance on award of the CIB.  It states, in pertinent part, that there are three basic requirements for the CIB.  The Soldier must hold and serve in an infantry MOS, he must be assigned to an infantry unit of brigade, regimental, or smaller size; and he must be personally present with his qualifying infantry unit and participate while the unit is engaged in active ground combat with enemy forces.  Combat service alone does not support award of the CIB.

11.  Army Regulation 600-8-22 also states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the PH.

12.  Army Regulation 600-8-22 further provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The ribbon denotes the first award and numerals starting with the numeral 2 denote the number of additional awards.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in RVN.  This pamphlet shows that at the time the applicant was assigned to Company A, 502nd Aviation Battalion, it was cited for the Valorous Unit Award (VUA) for actions during the period 18 September 1965 to 28 October 1965 by Department of the Army General Orders (DAGO) Number 20, dated 1967.

14.  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.  

15.  The award request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to add a second PH was carefully considered and found to have merit.  The evidence of record confirms the applicant was twice wounded in action and awarded two PHs while serving in the RVN, as evidenced by the respective PH orders on file in his OMPF.  Therefore, his records should be corrected to show the PH (1st oak leaf cluster).

2.  The evidence of record also contains orders confirming the applicant was awarded the AM (32nd Oak Leaf Cluster).  Therefore, it would be appropriate to correct the AM entry on his DD Form 214 to show the AM with Numeral 33 with "V" Device.
3.  The applicant served with a unit in the RVN that was awarded the VUA.  Therefore, he is also entitled to correction of his record to show this unit award.

4.  The record also confirms the applicant was twice awarded the AM with "V" Device for heroism, as evidenced by orders on file in his OMPF.  The governing regulation, while limiting the number of "V" Devices that may be attached to/worn on the medal and ribbon, does not preclude multiple awards for heroism.  As a result, there is no error or injustice related to the applicant receiving multiple awards of the AM for heroism/valor.  The fact he received multiple awards of the AM for heroism alone does not support another award in lieu of a second or subsequent AM awards for heroism.  Therefore, this factor alone does not support award of the DFC.  However, while there is not sufficient evidence for the Board to award the DFC or another award in lieu of his second award of the AM with "V" Device, this does not preclude the applicant from pursing award of the DFC or any other award under the provisions of Title 10, U.S. Code, section 1130.

5.  The evidence of record is also is void of any orders or other documents indicating that the applicant was ever recommended for or awarded the CIB by proper authority while serving on active duty.  Further, the record confirms the applicant served in aviation units in the RVN.  There is no indication that he ever served in a qualifying infantry unit during the tenure of his assignment in the RVN.  Therefore, the regulatory criteria necessary to support award of the CIB has not been met in this case.  As a result, there is an insufficient basis to support granting this portion of the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 24 of his DD Form 214 the PH and AM (26th oak leaf cluster); and
   
   b.  adding to item 24 of his DD Form 214 the PH (1st oak leaf cluster), AM with Numeral 33 and with “V” Device, and the VUA.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Distinguished Flying Cross or another award in lieu of the second award of the Air Medal with "V" Device, and award of the Combat Infantryman Badge.



      _________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)                                         AR20090004983



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ABCMR Record of Proceedings (cont)                                         AR20090004983



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