IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007288 


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 Silver Star (SS).

2.  The applicant states, in effect, that on 10 May 1968 his base at Camp Ranh Bay, Vietnam, came under attack with rockets and mortars.  He indicates that from a bunker where he took cover he noticed another Soldier running in the wrong direction away from the bunker and without regard for his own personal safety, he ran to get the Soldier to bring him back to the bunker. 
He states that just prior to reaching the bunker, an explosion from enemy fire threw him into a ditch resulting in injuries to his left leg.  The applicant further states that five other Soldiers took him to a field hospital and informed the physician on duty of the details of his injuries.  He indicates the physician stated that he would recommend him both for the Purple Heart (PH) and the SS.

3.  The applicant provides a self-authored statement 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.  The applicant’s military personnel record shows that he was inducted into the Army of the United States and entered active duty on 29 November 1966.  He was trained in, awarded, and served in military occupational specialty 05B (Radio Code Operator).  He was honorably released from active duty on 27 November 1968 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  The highest rank/grade he attained during his military service was specialist four (SP4/E-4).

3.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 1 year, 11 months, and 29 days of creditable military service, of which 11 months and 29 days was credited as foreign service in the Republic of Vietnam (RVN).

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of this form shows he was awarded the Vietnam Service Medal with three bronze service stars, RVN Campaign Medal with Device (1960), National Defense Service Medal, Army Commendation Medal, Air Medal, and the Sharpshooter Marksmanship Qualification Medal with Rifle Bar.  It does not show award of the SS.

5.  The applicant's military personnel records jacket (MPRJ) contains a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) dated 26 May 1977.  This document corrected the applicant's DD Form 214 to add the PH to the list of awards reflected in item 24 of that document.

6.  There are no general orders in the applicant’s records that show an award of the SS.

7.  The Awards and Decorations Computer Assisted Retrieval System, a web based index containing U.S. Army general orders issued between 1965 and 1973 for the Vietnam era, does not show award orders were published awarding the applicant the SS.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the SS 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, 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's contentions that he should receive the SS because the physician who treated his injuries following actions in combat in Vietnam told him that he would submit an SS recommendation for him has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's MPRJ is void any evidence to show that he was ever recommended for or awarded the SS to corroborate his claim of entitlement to this award.  Absent any evidence to show that the applicant met the necessary criteria for the award of the SS, there is an insufficient evidentiary basis to grant the requested relief in this case.  Accordingly his request is denied.

3.  While the available evidence is insufficient for awarding the applicant the SS, this in no way affects the applicant’s right to pursue his claim for the SS 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 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.


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)                                         AR20090007288



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ABCMR Record of Proceedings (cont)                                         AR20090007288



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