IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090015868


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of her deceased husband, a former service member (FSM), be corrected by adding the Bronze Star Medal (BSM) and Army Commendation Medal (ARCOM).  

2.  The applicant states the FSM was awarded the BSM and ARCOM while serving in the Republic of Vietnam (RVN).  But the paperwork was slow in following the FSM and the awards were not added to his DD Form 214.

3.  The applicant provides the following documents: 

* FSM's discharge certificate
* FSM's death certificate
* FSM letter, dated 9 June 1994
* Return of Inquiry Questionnaire, dated 17 June 1994
* DA Form 1049 (Personnel Action), dated 19 December 1966
* 1st Infantry Division letter, dated 20 November 1966
* Operation Attleboro VC Casualty Report
* News articles, dated 11 June and 8 December 1966
* Office of the Adjutant General (OTAG) letter, dated 8 December 1970
* 2nd Infantry Division Special Orders 45, dated 14 February 1966
* United States Army Training Center, Fort Ord, California Special
Orders 345, dated 11 December 1967
* BSM Award news article, dated 26 March 1967


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 FSM's record shows he enlisted in the Regular Army on 30 December 1964.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and the highest rank he attained while serving on active duty was specialist four. 

3.  The FSM's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 27 March 1966 through 17 March 1967, and item 38 (Record of Assignments) shows during this tour he was assigned to Company C, 1st Battalion, 28th Infantry Regiment, performing duties in MOS 11B as a rifleman and grenadier. 

4.  Item 41 (Awards and Decorations) of the FSM's DA Form 20 shows he earned the following awards:

* Vietnam Service Medal (VSM)
* Combat Infantryman Badge (CIB)
* National Defense Service Medal (NDSM)
* RVN Campaign Medal (RVNCM)
* Expert Marksmanship Qualification Badge with Machinegun Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The BSM and ARCOM are not included in the list of awards contained in item 41 of the FSM's DA Form 20 and his Official Military Personnel File (OMPF) is void of any orders or other documents showing he was recommended for or awarded the BSM and/or ARCOM by proper authority while serving on active duty.  


6.  The FSM's OMPF contains a National Personnel Records Center (NPRC) letter, dated 20 December 1974.  This letter informed the FSM his record did not contain orders awarding him the BSM or ARCOM, and as a result he was not authorized these awards.

7.  On 14 December 1967, the FSM was honorably released from active duty (REFRAD) after completing 2 years, 11 months, and 15 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the NDSM, VSM, RVNCM, CIB, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The BSM and ARCOM are not included in the list of awards contained in item 24 of the DD Form 214. 

8.  During the processing of this case, a member of the Board’s staff reviewed the Awards and Decorations Computer-Assisted Retrieval System (ADCARS).  This is an index of general orders issued during the Vietnam era between 1965 and 1973 and is maintained by the Military Awards Branch of the United States Army Human Resources Command.  There were no BSM and/or ARCOM orders for the FSM in ADCARS. 

9.  The applicant provides a copy of a Reading Eagle news article, dated
26 March 1967.  This article indicates while assigned to the 1st Battalion,
28th Infantry Regiment, in and around Tay Ninh Province, RVN, the FSM along with another Soldier were awarded the BSM for valor in combat against the Vietcong. 

10.  The applicant also provides a letter from the FSM, dated in 1994.  In this letter, he requested his BSM and ARCOM awards be tracked down and indicated he had attempted to track these awards since his discharge. 

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.  


12.  The 10 USC 1130 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 member'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 the FSM's record should be corrected by adding the BSM and ARCOM was carefully considered.  However, the evidence is not sufficient to support this claim. 

2.  Although the news articles and FSM's letter that were provided by the applicant indicate the FSM was awarded the BSM and ARCOM, there is no information, orders or other documents, in the FSM's record showing he was recommended for or awarded the ARCOM and BSM by proper authority during his active duty tenure. 

3.  Also, ADCARS, the DA index of award orders for the Vietnam era, does not contain BSM or ARCOM orders for the FSM.  As a result, the evidence is not sufficient to grant the requested relief. 

4.  While there is insufficient documentation and evidence for awarding the FSM the BSM and ARCOM, this in no way affects the applicant’s right to pursue this claim for the BSM and ARCOM for the FSM 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.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20090015868



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ABCMR Record of Proceedings (cont)                                         AR20090015868



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