IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090021045 


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 award of the Silver Star (SS) and Bronze Star Medal (BSM).

2.  The applicant states he was awarded both the SS and BSM but they are not reflected on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, BSM orders, and citation.

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.  On 22 July 1969, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 21 December 1969, the applicant was assigned as an Infantryman with Troop C, 3d Squadron, 5th Cavalry, 9th Infantry Division, in the Republic of Vietnam (RVN).  He returned to the United States on or about 15 November 1970.

4.  General Orders Number 1956, Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), Camp Red Devil, dated 27 October 1970 awarded the applicant the BSM.  The applicant provides a copy of the corresponding BSM Citation for the period December 1969 through December 1970.

5.  The applicant was assigned as an assistant machine gunner with the 2nd Armored Division at Fort Hood, Texas, until he was released from active duty on
30 April 1971.  He attained the rank of specialist four/pay grade E4 and completed 1 year, 9 months, and 9 days of creditable active duty.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the:

* Purple Heart
* Army Commendation Medal
* Vietnam Campaign Medal
* Vietnam Service Medal with 2 bronze service stars
* National Defense Service Medal
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  Item 24 does not show award of the BSM or the SS.

8.  There is no available evidence in the applicant’s records or on the Awards and Decorations Computer Assisted Retrieval System (ADCARS) showing that he was awarded or recommended for the SS. 

9.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.


10.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that based on the applicant's dates of service in the Republic of Vietnam he participated in the following 3 campaign periods:  the Vietnam Winter-Spring, the DA Sanctuary Counteroffensive, and the Vietnam Counteroffensive.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

11.  Army Regulation 600-8-22 provides that the SS is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Department of the Army General Orders 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service in Vietnam to Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

13.  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.

14.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests correction of his DD Form 214 to show award of the BSM and the SS was carefully considered and there is sufficient evidence to grant partial relief.

2.  General orders show the applicant was awarded the BSM.  Therefore, his DD Form 214 should be corrected to show this award.

3.  Records show the applicant participated in three campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his Vietnam Service Medal.

4.  Records show the applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award. 

5.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the SS.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage that he performed with marked distinction against the enemy that led to award of the SS.

6.  Nevertheless, while the available evidence is insufficient for awarding the applicant the SS, this in no way affects the applicant’s right to pursue his claim for the SS by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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 showing in addition to the awards shown on his DD Form 214, his authorized awards include the BSM, the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, and a third bronze service star to be affixed to his previously-awarded Vietnam Service Medal.

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 the award of the SS.  



      _______ _   __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)                                         AR20090021045



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ABCMR Record of Proceedings (cont)                                         AR20090021045



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