IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090017100 


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 award of the Distinguished Flying Cross.

2.  The applicant states he was recommended for the Distinguished Flying Cross for his actions in the Republic of Vietnam (RVN) on 19 March 1970, but was told it was downgraded to the Bronze Star Medal with "V" Device.

	a.  He states Major H____ J. S____, the battalion operations officer, confirmed he recommended him for the Distinguished Flying Cross and thought the applicant had received it.

	b.  Major S____'s award recommendation for his own actions on 19 March 1970 was downgraded to the Air Medal with "V" Device.

	c.  The applicant states he was assigned to the 5th Battalion, 12th Infantry, 199th Infantry Brigade, and served with the 1st Cavalry Division on missions in Cambodia.

	d.  He was awarded two Air Medals for the number of missions he flew.

	e.  He adds he was recommended for award of the Bronze Star Medal by Captain A____ for his actions in Cambodia, but never received the award.

3.  The applicant provides a letter from Lieutenant Colonel H____ J. S____, U.S. Army (Retired), dated 14 September 2009, and Headquarters, U.S. Army Vietnam, General Orders Number 3291, dated 16 July 1970.
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 was inducted into the Army of the United States for a period of 2 years on 29 January 1969.  Upon completion of training he was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service), he served in the RVN from 23 June 1969 through 21 June 1970;

	b.  item 38 (Record of Assignments), he served in duty MOS 64A1O (Light Vehicle Driver) while assigned to Headquarters and Headquarters Company, 5th Battalion, 12th Infantry, 199th Infantry Brigade, RVN, from 7 July 1969 through 18 June 1970;

	c.  item 41 (Awards and Decorations), award of the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar, Vietnam Service Medal, RVN Campaign Medal with Device (1960), Driver and Mechanic Badge with "W" Bar, Army Commendation Medal (2nd Oak Leaf Cluster), overseas service bar, Air Medal (2nd Award), and Purple Heart.

4.  There are no orders or other evidence in the applicant's military personnel records that shows he was awarded the Distinguished Flying Cross, Bronze Star Medal with "V" Device, or Bronze Star Medal.

5.  A search of the U.S. Army Human Resources Command (HRC) Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Distinguished Flying Cross, Bronze Star Medal with "V" Device, or Bronze Star Medal.

6.  The applicant's DD Form 214 shows he was honorably released from active duty on 28 January 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.  At the time he had completed 2 years of net active service and 11 months and 29 days of foreign service.

	a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, RVN Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar, Driver and Mechanic Badge with "W" Bar, Army Commendation Medal (2nd Oak Leaf Cluster), Purple Heart, Air Medal (2nd Award), two overseas service bars, and Army Good Conduct Medal.

	b.  Item 30 (Remarks) shows he served in the RVN from 23 June 1969 to 21 June 1970.

7.  Headquarters, U.S. Army Reserve Personnel Command, St. Louis, Missouri, letter, dated 23 April 1987, shows the Chief, Personnel Services Division, advised the Honorable R____ N. M____, Representative in Congress, that a review of the applicant's records failed to identify orders for the Distinguished Flying Cross or Bronze Star Medal with "V" Device.

8.  In support of his application, the applicant provides a copy of a letter from Lieutenant Colonel H____ J. S____.

	a.  He states the letter is to recommend the applicant for the Distinguished Flying Cross for a second time for heroism while participating in aerial flight in the RVN on 19 March 1970.

	b.  He states the applicant accompanied him on a mission that required them to locate a platoon in the dense jungle while he maneuvered the helicopter so that it hovered 40 feet above the ground for about 5 minutes under heavy small arms fire and they delivered ammunition the platoon needed.

	c.  He adds he was awarded the Air Medal with "V" Device for heroism on 19 March 1970.

	d.  Headquarters, U.S. Army Vietnam, General Orders Number 3291, dated 16 July 1970, awarded Major H____ J. S____ the Air Medal (2nd Award) with "V" Device for heroism while participating in aerial flight in the RVN on 19 March 1970.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

	a.  U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

	c.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  During the Vietnam War, the Bronze Star Medal may have been awarded for heroism, meritorious achievement, or meritorious service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.

	d.  The bronze "V" device indicates acts of heroism involving conflict with an armed enemy.  The bronze "V" device is authorized in conjunction with awards of the Bronze Star Medal, Air Medal, and Army Commendation Medal.

	e.  Paragraph 1-14 provides that, except for the provisions of Title 10, U.S. Code, section 1130, each recommendation for an award or decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  Submission into military channels is defined as "signed by the initiating official and endorsed by a higher official in the chain of command."  However, pursuant to Title 10, U.S. Code, section 1130, a Member of Congress may request consideration of a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  Based upon such review, the Secretary of the Army will make a determination as to the merits of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting under Title 10, U.S. Code, section 1130.

	f.  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 contends his records should be corrected to show award of the Distinguished Flying Cross for action in the RVN on 19 March 1970 because he was recommended for the award; however, it was downgraded to the Bronze Star Medal with "V" Device.  He also contends he was recommended for award of the Bronze Star Medal for missions he performed in Cambodia.

2.  There is no evidence in the applicant's military personnel records that shows he was recommended for or awarded the Distinguished Flying Cross.  A search of the HRC ADCARS failed to produce orders pertaining to an award of the Distinguished Flying Cross to the applicant.  Therefore, there is insufficient evidence to support the applicant's claim to the Distinguished Flying Cross.

3.  There is no evidence in the applicant's military personnel records that shows a recommendation for award of the Distinguished Flying Cross was downgraded to the Bronze Star Medal with "V" Device.  A search of the HRC ADCARS failed to produce orders pertaining to an award of the Bronze Star Medal with "V" Device to the applicant.  Therefore, there is insufficient evidence to support the applicant's claim to the Bronze Star Medal with "V" Device.

4.  There is no evidence in the applicant's military personnel records that shows he was recommended for or awarded the Bronze Star Medal.  A search of the HRC ADCARS failed to produce orders pertaining to an award of the Bronze Star Medal to the applicant.  Therefore, there is insufficient evidence to support the applicant's claim to the Bronze Star Medal.

5.  The sincerity of the comments offered by the applicant and his former battalion operations officer are not in question.  However, the Military Awards regulation is clear in that announcement of personal decorations in orders is required.  The evidence of record fails to satisfy this requirement.  Therefore, in view of the foregoing, there is insufficient evidence to support the applicant's claim to the Distinguished Flying Cross, Bronze Star Medal with "V" Device, or Bronze Star Medal.

6.  While the available evidence is insufficient for awarding the applicant the Distinguished Flying Cross, Bronze Star Medal with "V" Device, and Bronze Star Medal, this in no way affects the applicant's right to pursue his claim for an award 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090017100



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ABCMR Record of Proceedings (cont)                                         AR20090017100



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