IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006726 


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, award of the Bronze Star Medal (BSM) and Combat Infantryman Badge (CIB). 

2.  The applicant states, in effect, his unit received the BSM and CIB.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 and entered active duty on 18 August 1969, and was trained in and awarded the primary military occupational specialty (PMOS) 67N (Helicopter Repairer) and secondary MOS (SMOS) 44E (Machinist) on 30 January 1970 and 26 September 1970, respectively.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 28 February 1970 through 24 March 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 56th Transportation Company, performing duties in MOS 67N and 44E as a helicopter repairer and machinist.  Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), and Army Commendation Medal (ARCOM).  The BSM and CIB are not included in the list of earned awards listed in item 41.

4.  The applicant's record contains Headquarters, 1st Aviation Brigade General Orders Number 7922, dated 17 August 1970, which awarded the applicant the ARCOM for meritorious achievement in the RVN during the period 28 February through 15 July 1970, and Headquarters, 1st Aviation Brigade General Orders Number 971, dated 6 February 1971, which awarded the applicant the ARCOM for his meritorious service in the RVN from March 1970 through March 1971.  His record is void of any orders or documents that indicate the applicant was ever recommended for or awarded the BSM or CIB.  

5.  On 25 March 1971, the applicant was honorably released from active duty (REFRAD), in the rank of specialist five, after completing 1 year, 7 months, and 7 days of active military service.  The DD Form 214 he was issued upon his REFRAD shows, in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure:  ARCOM, NDSM, VSM and RVNCM.  The BSM and CIB are not included in the list of earned awards entered in item 24.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Chapter 1 outlines the standards and principles of the Army's awards system.  It states, in pertinent part, that recommended decorations will be expeditiously processed, and recorded in military orders and certificates by the final approving authority within 60 days.  Recommendations for awards are submitted on a DA Form 638, and will be approved by the proper defined award approval authority.  


7.  Paragraph 1-19 of the awards regulation contains guidance on duplication of awards.  It states, in pertinent part, that only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service. Continuation of the same or similar type service already recognized by an award for meritorious service or achievement will not be the basis for a second award.  

8.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM and states, in pertinent part, that it may be awarded for meritorious service or achievement.  Paragraph 3-17 of the awards regulation contains guidance on award of the Army Commendation Medal and states, in pertinent part, that it may be awarded for meritorious achievement or service and acts of valor that are of a lesser degree than required for award of the BSM.  Paragraph 3-19 contains the rules for processing award recommendations and states, in pertinent part, that a DA Form 638 will be used to initiate, process, and approve recommendations for Army individual decorations.  It further states that the designated award approval authority must approve the award on the DA Form 638 submitted.  

9.  Chapter 8 of the awards regulation contains guidance on award of combat and special skill badges, and 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 member must hold and serve in an infantry MOS; must be assigned to a qualifying infantry unit of brigade, regimental or smaller size; and must have been present and participated with his qualifying infantry unit while it was engaged in active ground combat with enemy forces.  It further stipulates that combat service alone is not a sufficient basis to support award of the CIB.  

10.  Chapter 7 of the awards regulation contains guidance on United States Unit Awards and identifies the following unit decorations:  Presidential Unit Citation (PUC), Valorous Unit Award (VUA), Meritorious Unit Commendation (MUC), and Army Superior Unit Award.  The BSM and CIB are individual awards, not authorized unit awards.  

11.  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's contention that he should be awarded the BSM because his unit earned it was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the BSM by proper authority while serving on active duty.  

2.  Further, given the applicant was awarded the ARCOM for his meritorious service for his entire tour of duty in the RVN, award of the BSM for meritorious service would have been prohibited as a duplicate award for this same period.  In addition, he was awarded the ARCOM for meritorious achievement during the period between 28 February and 15 July 1970, which would also have precluded award of a BSM for meritorious achievement during this period.  

3.  Finally, the BSM is not an authorized unit award and individual eligibility for the BSM would not be authorized solely based on service in a particular unit.  Therefore, absent any evidence that the applicant was ever recommended for or awarded the BSM during his RVN tour, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  While the available evidence is insufficient for awarding the applicant the BSM, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant's contention that he should be awarded the CIB was also carefully considered.  However, by regulation, in order to support award of the CIB, there must not only be evidence that a member held an infantry MOS, but also that he served in a qualifying infantry unit of brigade, regimental, or smaller size, and that he was personally present and participated with the qualifying infantry unit while it was engaged in active ground combat with enemy forces.  The applicant's record confirms that during his tour of duty in the RVN, he was assigned to a transportation unit and performed duties in MOS 67N and 44E, as a helicopter repairer and machinist.  

5.  Further, the applicant's record 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, and the CIB is not included in the list of awards contained in item 41 of his DA Form 20 or in item 24 of his DD Form 214.  As a result, given he did not hold and serve in an infantry MOS and did not serve in a qualifying infantry unit while serving in the RVN, the regulatory burden of proof necessary to support award of the CIB has not been satisfied in this case.  Therefore, it would not be appropriate to award him the CIB based solely on his combat unit service in the RVN.
6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

7.  The applicant and all others concerned should know that this action related to award of the BSM and CIB 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.  

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)                                         AR20090006726



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006726


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1