IN THE CASE OF:	  

		BOARD DATE:	        15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007458 


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 Air Medal.

2.  The applicant states that he should have received the Air Medal.

3.  The applicant provides a copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty/Report of Separation from Active Duty), dated 23 March 1995 and 1 July 1978; a copy of his DA Form 4186 (Medical Recommendation For Flying Duty), dated 8 January 1991; and the back page of an undated Standard Form 89 (Report of Medical Examination) 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.  Having had prior service, the applicant's records show he enlisted in the Regular Army for a period of 6 years on 2 October 1989 and he held military occupational specialty (MOS) 68G (Aircraft Structural Repairer).  He was honorably discharged in the rank/grade of specialist/E-4 on 3 March 1995 by reason of disability with entitlement to severance pay. 

3.  The applicant’s available records do not indicate his exact dates of service in Southwest Asia; however, the Defense Manpower Data Center (DMDC) compiled the Desert Shield/Storm Data Base.  This data base indicates the applicant served in Southwest Asia from on or about 1 October 1990 to on or about 15 May 1991. 

4.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214, dated 23 March 1995, shows he was awarded the Army Achievement Medal (2nd award), the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Army Lapel Button, the Southwest Asia Service Medal with three bronze service stars, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Kuwait Liberation Medal, the Expert Marksmanship Qualification Badge with Rifle, Pistol, and Grenade Bars, and the Driver and Mechanic Badge.  Item 24 does not show award of the Air Medal.

5.  There are no orders in the applicant's records that show he was awarded the Air Medal.  

6.  The applicant submitted a copy of a DA Form 4186, dated 8 January 1991, that shows he underwent a medical examination for the purpose of full flying duty gunner on that date.  The DA Form 4186 is an official document used to notify the aviation commander of certification of medical fitness for all classes of military and civilian aircrew utilizing Army standards for medical clearance.

7.  The applicant's flight record is not available for review with this case.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  Department of the Army message, with a date/time group of 051044Z April 1991, provided implementation guidance for award of the Air Medal for service in the Southwest Asia Theater of Operations.  The message stated:  “The Air Medal for meritorious service in the Southwest Asia Theater of Operations is authorized for sustained distinction in the performance of duties involving regular and frequent aerial flight for a period of at least six months.  For the purpose of this award, approving authorities may consider time flown in Southwest Asia commencing 2 August 1990.”

10.  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 contends that he is entitled to award of the Air Medal.

2.  The evidence of record shows the applicant held an aircraft repairer MOS, served in Southwest Asia, and underwent a certification of medical fitness. However, his record is void of his flight record and there is no evidence that he actually participated in aerial flights during his service in Southwest Asia.   Additionally, as with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required for award o the Air Medal.  In the absence of records or other independent evidence that would confirm he completed the requirements to be awarded the Air Medal, there is insufficient evidence upon which to base award of the Air Medal in this case.  

3.  While the available evidence is insufficient for awarding the applicant the Air Medal, this in no way affects the applicant’s right to pursue his claim for the Air Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 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.



      _______ _   __XXX_____   ___
               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)                                         AR20090007458



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ABCMR Record of Proceedings (cont)                                         AR20090007458



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