IN THE CASE OF:	

		BOARD DATE:	1 October 2009   

		DOCKET NUMBER:  AR20090008603 


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 reconsideration of his earlier petition to be awarded the Purple Heart (PH).

2.  The applicant states, in effect, he should be awarded the BSM and PH based on his meritorious service and the injuries he sustained while serving in the Republic of Vietnam (RVN).

3.  The applicant provides copies of the following documents in support of his application:  photograph, separation documents, award orders, Veterans Administration and National Personnel Records Center letters, medical record documents, and an envelope.

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC97-08800 on 15 October 1997.  The regulation governing the operations of the Board allows an applicant to request reconsideration if the request is received within 1 year of the ABCMR's original decision.

3.  In this case, the applicant provides no new evidence or argument pertaining to award of the PH that was not previously available to and considered by the Board during its original review of this matter.  Therefore, since the original ABCMR decision was rendered on 15 October 1997, more than 1 year ago, there are no regulatory provisions that allow for further reconsideration of this issue by the Board.  As a result, the PH request will not be addressed further by the Board and/or in this Record of Proceedings. 

4.  The applicant's military record shows he enlisted in the Regular Army and entered active duty on 26 June 1967.  He completed basic combat training at Fort Benning, Georgia, and advanced individual training (AIT) at Fort Bliss, Texas.  Upon completion of AIT, the applicant was awarded military occupational specialty 16D (HAWK Missile Crewman).

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 18 January 1969 to 2 August 1969 in item 31 (Foreign Service). 
Item 41 (Awards and Decorations) does not include the BSM in the list of earned awards entered and item 48 (Date of Audit) shows the applicant last audited this record on 13 January 1970.

6.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority while serving on active duty.  His record does contain Headquarters, Americal Division, General Orders Number 6922, dated 23 July 1969, which awarded the applicant the Army Commendation Medal (ARCOM) for meritorious service in the RVN from January through July 1969.

7.  On 25 June 1970, the applicant was honorably released from active duty (REFRAD) in the rank of specialist five after completing 3 years of active military service.

8.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued upon his REFRAD, as amended by a DD Form 215 (Correction to DD Form 214) issued as a result of action by this Board on 26 November 2008, confirms he earned the following awards during his active duty tenure:  National Defense Service Medal, ARCOM, Army Good Conduct Medal, Vietnam Service Medal with three bronze service stars, RVN Campaign Medal with Device (1960), RVN Gallantry Cross with Palm Unit Citation, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and Basic Missile-Man Badge.

9.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the BSM pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 1-19 contains guidance on duplication of awards and 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.

11.  Paragraph 3-14 of Army Regulation 600-8-22 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 contains guidance on award of the ARCOM 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.

12.  Paragraph 3-19 of Army Regulation 600-8-22 contains the rules for processing award recommendations and states, in pertinent part, that a DA Form 638 (Recommendation for Award) 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.

13.  Table 3-6 of the awards regulation identifies the wartime award approval authorities and identifies the senior Army commander and commanders of a separate force serving in the rank of lieutenant general as the approval authority for the BSM.  It also allows further delegation of BSM approval to major general or brigadier general (serving in major general positions) commanders of separate units.

14.  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.

15.  The 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 claim of entitlement to the BSM was carefully considered.  However, 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.  Further, given he was awarded the ARCOM for meritorious service for his tour in the RVN, award of the BSM for this same period of meritorious service would be a duplicate award and is prohibited by regulation.

2.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal for meritorious achievement or heroism (valor), this in no way affects the applicant’s right to pursue his claim for the BSM 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.



      _____________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)                                         AR20090008603



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ABCMR Record of Proceedings (cont)                                         AR20090008603



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