IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090008437 


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, that the Air Medal (AM) and all unit awards be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).   

2.  The applicant states, in effect, that the AM and unit citations were omitted from the list of awards contained on his DD Form 214.   

3.  The applicant provides a unit award extract and his DD Form 214 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 was inducted into the Army of the United States and he entered active duty on 11 July 1969.  He was originally awarded military occupational specialty (MOS) 13A (Field Artillery Basic) on 7 November 1969, and he was later reclassified into MOS 36K (Field Wireman) on 11 May 1970.   

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 5 December 1969 through 10 November 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Battery (HHB), 2nd Battalion, 
320th Artillery Regiment, performing duties in MOS 13A as an ammunitions handler and radio telephone operator.  

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Army Commendation Medal (ARCOM), RVN Campaign Medal (RVNCM) with Device (1960),
2 Overseas Service Bars, Bronze Star Medal (BSM), Army Good Conduct Medal (AGCM), Expert Marksmanship Qualification Badge with Pistol Bar and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 & M-16) Bar.  

5.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents indicating that the applicant was ever qualified or recommended for, or awarded the AM during his active duty tenure.  

6.  On 9 July 1971, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 29 days of active military service.  The DD Form 214 he was issued 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:  NDSM, VSM, ARCOM, RVNCM with Device (1960), 2 Overseas Service Bars, BSM, AGCM, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar. The AM is not included in the list of awards contained on the DD Form 214.  

7.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-13 contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  

8.  Paragraph 3-16 of the awards regulation contains guidance on the AM.  It states, in pertinent part, that it is awarded to members that distinguished 
themselves by meritorious achievement while participating in aerial flight.  Awards may be made to recognize single acts of merit or heroism or single acts of merit (achievement) are authorized for acts of a lesser degree than required for the Distinguished Flying Cross.  Awards for meritorious service are authorized for sustained distinction in the performance of duties involving regular and frequent participation in aerial flight for a period of at least 6 months.  The AM must be recommended and approved by the proper award approval authority.  

9.  The awards regulation stipulates that award of the AM is primarily intended to recognize those personnel who are on current crewmember or non-crewmember flying status which requires them to participate in aerial flight on a regular and frequent basis in the performance of their primary duties.  However, it may also be awarded to certain other individuals whose combat duties require regular and frequent flying in other than a passenger status, or individuals who perform a particularly noteworthy act while performing the function of a crewmember, but who are not on flying status.  These individuals must make a discernible contribution to the operational land combat mission or to the mission of the aircraft in flight. Examples of personnel whose combat duties require them to fly include those in the attack elements of units involved in air-land assaults against an armed enemy and those directly involved in airborne command and control of combat operations.  Involvement in such activities, normally at the brigade/group level and below, serves only to establish eligibility for award of the AM; the degree of heroism, meritorious achievement or exemplary service determines who should receive the award.  Awards will not be made to individuals who use air transportation solely for the purpose of moving from point to point in a combat zone. 

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign 
participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (2nd Battalion, 360th Artillery Regiment) received the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.  The unit did earn the Presidential Unit Citation (PUC), Valorous Unit Award (VUA), and Meritorious Unit Commendation (MUC) for service in the RVN; however, these were awarded for periods during which the applicant was not assigned to the unit.  It further shows that during the applicant's tenure of assignment, participation credit was granted for the Vietnam Winter-Spring 1970 (1 November 1969 – 30 April 1970), Sanctuary Counteroffensive (1 May 1970 – 30 June 1970), and Vietnam Counteroffensive Phase VII (1 July 1970 – 30 June 1971) campaigns.   

11.  Title 10, U.S. Code, section 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.  

12.  An award request made under Title 10, U.S. Code, section 1130, 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 record should corrected by adding the AM was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record fails to show the applicant ever qualified or was recommended for the AM while serving in the RVN.  His DA Form 20 does not include the AM in the list of earned awards in item 41, and it is also not included in the list of awards contained on his DD Form 214.  As a result, absent any evidence of record or independent evidence that shows he was performing crewmember or non-crewmember flight duties that qualified him for the AM, or that he was recommended for or awarded the AM by proper authority while serving on active duty, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

2.  While there is insufficient documentation and evidence to award the applicant the AM, this in no way affects the applicant’s right to pursue his claim for award of the AM by submitting a request, with an award recommendation and supporting evidence, through a Member of Congress under the provisions of 
Title 10, U.S. Code, section 1130, as outlined paragraphs 11 and 12 of the Consideration of Evidence portion of this document. 

3.  The evidence of record does show that based on his RVN service and campaign participation, the applicant is eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 3 bronze service stars for wear on his already-awarded VSM.  Therefore, these awards should be added to his record and DD Form 214.  

4.  However, although the applicant's unit earned the PUC, VUA, and MUC for service in the RVN, none of these awards were earned during the applicant's tenure of assignment.  Therefore, he is not eligible for these awards.  As a result, there is an insufficient evidentiary basis to support granting this portion of the applicant's requested relief. 

5.  In addition, the applicant's record confirms he earned the Expert Marksmanship Qualification Badge with Pistol Bar and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 & M-16) Bar; however, the DD Form 214 erroneously lists two separate entries of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar one for the M-14 and one for the M-16 rifle.  As a result, it would be appropriate to correct the marksmanship badge entries on his DD Form 214 at this time.  

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 entry "VSM";
   

   b.  deleting from item 24 of his DD Form 214 the entries "SPS M-16" and "SPS M-14";

   c.  adding to item 24 of his DD form 214 the Vietnam Service Medal with three bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Pistol Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 & M-16) Bar; and

   d.  providing him a correction to his DD Form 214 that includes these changes. 

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 adding the Air Medal and any other unit awards to his DD Form 214.  



      ___________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)                                         AR20090008437



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ABCMR Record of Proceedings (cont)                                         AR20090008437



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