IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017451 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show all awards he is eligible to receive to include the Bronze Star Medal (BSM).  In addition, he requests that his DD form 214 be updated to show his current disability rating of 80 percent (%), effective 29 May 2009, and that he be issued a new DD Form 214. 

2.  The applicant states all of the awards he earned are not listed on his DD Form 214.  He states his DD Form 214 is 40 years old and he would like an updated copy.  He also states he should have received the BSM. 

3.  The applicant provides the following documents in support of his application:

* DD Form 214
* Purple Heart (PH) Orders
* Retirement Orders
* Copy of a photograph
* Copies of envelopes and letters 


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 enlisted in the Regular Army on 31 July 1969. He was trained in and awarded military occupational specialty 62E (Crawl Tractor Operator).  Private first class (PFC)/E-3 is the highest rank he attained.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 10 January to 3 May 1970.  Item 38 (Record of Assignments) shows during his RVN tour of duty he was assigned to Company D, 36th Engineer Battalion.  Item 38 also shows he received no less than "excellent" conduct and efficiency ratings during all of his active duty assignments.

4.  The applicant's record is void of derogatory information or a unit commander disqualification that would preclude award of the Army Good Conduct Medal (AGCM).  

5.  The record contains Headquarters, 3rd Surgical Hospital, General Orders Number 57, dated 6 April 1970.  These orders awarded the applicant the PH for being wounded in action in the RVN on 5 April 1970.  The record is void of a recommendation for, or orders awarding him the BSM.  

6.  On 1 September 1970, the applicant was honorably retired from active duty by reason of permanent physical disability after completing 1 year, 1 month, and 
1 day of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM) and Expert Marksmanship Qualification Badge with Rifle Bar.  Item 30 (Remarks) includes the entry “Disability 60%.”  
7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 contains guidance on award of the VSM.  It 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.  Table B-1 shows during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Winter-Spring 1970 and Sanctuary Counteroffensive campaigns.

8.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM.  It states it may be awarded for heroism, meritorious service, or meritorious achievement.  The regulation calls for the submission of a recommendation, approval by the proper award approval authority, and announcement of the award in official orders.  

9.  Chapter 4 of the awards regulation contains guidance on the AGCM.  It states it is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

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 (Company D, 36th Engineer Battalion) was awarded the RVN Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Order (DAGO) Number 32, issued in 1973.

11.  DAGO Number 8, issued in 1974, authorized award of the RVN Gallantry Cross with Palm Unit Citation to all units assigned to the RVN during the period from 8 February 1962 through 28 March 1973.  

12.  Title 10, U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, upon the request of a Member of Congress, for the Secretary concerned to review a proposal for the award or presentation of a decoration (or the upgrading of a decoration) not authorized due to timely submission limitations established by law or policy.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.


13.  10 USC 1130 processing requirements include submission of the award recommendation, with a DA Form 638 (Recommendation for Award), through a Member of Congress to the Secretary of the Army at the following address:
U.S. Army Human Resources Command Personnel Service Support Division,
200 Stovall Street, Room 3S67, Alexandria, VA 22332-0405.  

14.  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.

15.  Army Regulation 635-5 (Separations Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation does not provide for correction of a DD Form 214 to include information on matters occurring after the separation date.  It further states a new DD Form 214 will be issued only for one of the following reasons: 

   a.  when directed by proper appellate authority, Executive Order, or by the Secretary of the Army; 

   b.  when it is determined that the original DD Form 214 cannot be properly corrected by the issuance of a DD Form 215 (Correction to the DD Form 214) or if the correction would require issuance of more than two DD Forms 215; and 

   c.  when two DD Forms 215 have been issued and an additional correction is required. 

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant was awarded the PH for being wounded in action in the RVN on 5 April 1970.  It also shows he is eligible for the Republic of Vietnam Civil Actions Honor Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation and 2 bronze service stars to be worn with his already-

awarded VSM based on his RVN service and campaign participation.  As a result, these awards should be added to item 24 of his DD Form 214.

2.  The record also shows the applicant received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments.  His record is also void of derogatory information or a unit commander disqualification precluding award of the AGCM.  As a result, it would also be appropriate to award him the first award of the AGCM for his qualifying period of honorable active service from 31 July 1969 through 1 September 1970 and add this award to his DD Form 214. 

3.  The applicant's contention that he should have been awarded the BSM has also been carefully considered.  However, the record is void of a recommendation and orders awarding the applicant the BSM.  As a result, the evidence does not support granting this portion of his requested.  Although the evidence is not sufficient for the Board to award the BSM, this does not preclude the applicant from pursuing the award under the provisions of 10 USC 1130.  

4.  The applicant's request for his DD Form 214 to be updated to show his current disability rating of 80%, effective 29 May 2009, and the issuance of a new DD Form 214 was also carefully considered.  However, by regulation, the 
DD Form 214 is a summary of a specific period of continuous active duty.  There are no regulatory provisions allowing a DD Form 214 to be updated to include information on matters occurring subsequent to the separation date on the
DD Form 214.  

5.  In addition, the issuance of a new DD Form 214 is only permitted based on defined circumstances.  These do not include the age of the original DD Form 214.  As a result, there is an insufficient evidentiary basis to support adding the applicant's current disability rating to the DD Form 214 and issuing him a new
DD Form 214.  

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.  awarding him the Army Good Conduct Medal for his qualifying period of
honorable active service from 31 July 1969 to 1 September 1970;

b. amending his DD Form 214 by deleting the Vietnam Service 
Medal;

   c.  adding to the DD Form 214 the Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

   d.  issuing him a correction to his DD Form 214 reflecting the above 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 award of the Bronze Star Medal, adding his current disability rating to item 30, and issuing him a new 
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)                                         AR20090017451



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ABCMR Record of Proceedings (cont)                                         AR20090017451



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