IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090020356 


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 two applications, award of the Bronze Star Medal (BSM) and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to document his service in the Republic of Vietnam (RVN).

2.  The applicant states the following:

a. he believes his record will show his entitlement to the BSM;

b. a warrant officer wrote a letter regarding awarding him the BSM;

c. his DD Form 214 does not show the dates he served in the RVN; and

d. the absence of his RVN service on his DD Form 214 may delay his
Department of Veterans Affairs (VA) benefits.

3.  The applicant provides Anoka County Veterans Service Office letter dated 16 November 2009 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 that he enlisted in the Regular Army on 17 October 1962.  He was trained in and awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

3.  The DA Form 24 (Service Record) shows the applicant twice served in the RVN, from 9 April 1963 through 22 April 1964 and from 12 July through 6 October 1965.  Section 9 (Medals, Decorations, and Citations) shows he earned the following awards during his tenure on active duty:

* Armed Forces Expeditionary Medal (AFEM)
* Vietnam Service Medal (VSM)
* Army Good Conduct Medal (AGCM)
* Expert Marksmanship Qualification Badge with [M14] Rifle Bar
* Marksman Marksmanship Qualification Badge with [M1] Rifle Bar

4.  The applicant's record is void of an order indicating he was awarded the BSM by proper authority while serving on active duty.

5.  On 7 October 1965, the applicant was honorably released from active duty (REFRAD) after completing 2 years, 11 months, and 21 days of active military service.  The DD Form 214 he was issued at the time shows in Item 24c
(Foreign and/or Sea Service) that he completed 1 year, 3 months, and 28 days of overseas service in the United States Army Pacific (USARPAC) overseas theater, which included the RVN.

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 include the AGCM, VSM, AFEM, Expert Marksmanship Qualification Badge with [M14] Rifle Bar, and Marksman Marksmanship Qualification Badge with [M1] Rifle Bar.
7.  In the processing of this case, a member of the Board’s staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS), which is a web-based index containing general orders issued between 1965 and 1973 for the Vietnam era.  No orders were found awarding the applicant the BSM.

8.  Title 10, 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.

9.  The 10 USC 1130 award 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.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The instructions for preparation of the DD Form 214 contained in the version of the regulation in effect at the time of the applicant's separation stated, in pertinent part, to enter the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater.


11.  A 1970 change to the separation documents regulation added the requirement to add the inclusive dates of RVN service completed during the period covered by the DD Form 214 to the remarks section of the DD Form 214.  A 1972 change eliminated the RVN remarks entry and established a specific block to document Indochina and Korea service, which included the requirement to specify RVN service and inclusive dates.  The requirement to document RVN service dates was removed from the version of the regulation published on 
1 October 1979, and has not been required since that date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the BSM and correction of his DD Form 214 to show the specific dates he served in the RVN.

2. The available evidence contains no documents to show the applicant was ever recommended for or awarded the BSM by proper authority.  As a result, there is an insufficient evidentiary basis to support granting the applicant this award.

3.  While the available evidence is insufficient to correct his records to show award of the BSM, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  The governing regulation in effect at the time of applicant's separation provided no provision for identifying RVN service dates as a separate entry.  The regulation required only that the total overseas service completed during the period covered by the DD Form 214 and the last overseas theater be entered in Item 24c.  The evidence of record confirms the entry in Item 24c of the applicant's DD Form 214 properly documents the applicant's 1 year, 3 months, and 28 days of overseas service in the USARPAC overseas theater, which included the RVN.  As a result, there is no evidence of any error or injustice related to the overseas service entries on the applicant's DD Form 214. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20090020356





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ABCMR Record of Proceedings (cont)                                         AR20090020356



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