BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100001081 


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 Silver Star and to have his records corrected to show award of the Bronze Star Medal and all awards and decorations authorized for his service in the Republic of Vietnam.  In addition, he requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show foreign service credit of 1 year and 29 days, not 10 years and 11 months.

2.  The applicant states he received a Bronze Star Medal when he out processed from the Republic of Vietnam and was told he had been recommended for the Silver Star for actions in combat on or about 28 December 1968.  He states he entered a kill zone to recover a severely wounded Soldier during an ambush.  He would like his records corrected to show these specific awards and all awards and decorations for his service.  In addition, he states his DD Form 214 has a typographical error showing his total foreign service credit as "10 years, 11 months, and 29 days" when he served 1 year and 29 days.

3.  The applicant does not provide any documentary evidence 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 was inducted into the Army of the United States on 10 October 1967 for a 2-year period.  He completed his initial entry training requirements and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he embarked for the Republic of Vietnam on 1 April 1968 and was assigned to Company C, 2nd Battalion, 5th Calvary, 1st Cavalry Division (Airmobile) from      7 April 1968 to 29 March 1969.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his service.  His military personnel records do not show any lost time; nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); or any convictions by court-martial.  There is also no record of a commander's disqualification for award the Army Good Conduct Medal.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Bronze Star Medal or Silver Star.

6.  On 2 September 1969, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve to complete his statutory military service obligation in compliance with Special Orders Number 238, dated 26 August 1969.  His DD Form 214 shows he completed 1 year, 11 months, and 9 days of active service.

7.  Item 22c (Foreign and/or Sea Service) of the applicant's DD Form 214 shows he served overseas for "10 years, 11 months, 29 days."

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the following awards and decorations:

* Vietnam Service Medal
* Army Commendation Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* National Defense Service Medal
* Purple Heart
* Air Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge

9.  There are no orders in the applicant's official military personnel file awarding him a Bronze Star Medal or Silver Star.

10.  A review of the Awards and Decorations Computer-Assisted Retrieval System), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders awarding the applicant the Bronze Star Medal or Silver Star.

11.  References:

	a.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders were required.  

	b.  Army Regulation 600-8-22 (Military Awards) states the Silver Star 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.

	c.  Army Regulation 672-5-1 (Military Awards), in effect at the time, required that the enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial throughout a qualifying period of service for award of the Army Good Conduct Medal.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.

	d.  Army Regulation 600-8-22 provides for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Appendix B of this regulation shows the campaigns for Vietnam.  This regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  During the applicant's tour in Vietnam, he participated in four campaigns:

* Vietnam Counteroffensive Phase IV (2 April 1968-30 June 1968)
* Vietnamese Counteroffensive Phase V (1 July 1968-1 November 1968)
* Vietnamese Counteroffensive Phase VI (2 November 1968-22 February 1969)
* Tet 69 Counteroffensive (23 February 1969-8 June 1969)

	e.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the Republic of Vietnam.  This document shows that the unit to which the applicant was assigned was awarded the following unit awards:

* Valorous Unit Award for the period 27-28 June 1968 by Department of the Army General Orders Number 28, dated 1969
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 9 August 1965-19 May 1969 by Department of the Army General Orders Number 59, dated 1969

	f.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

	g.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to U.S. Army Human Resources Command, Soldier Programs and Services Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant stated he received a Bronze Star Medal and was recommended for the Silver Start upon his departure from the Republic of Vietnam, there are no orders in his available service record.  A search of the Awards and Decorations Computer-Assisted Retrieval System did not result in any award orders for the applicant.  Awards and decorations are announced by general or permanent orders.  Without an order awarding the Bronze Star Medal or the Silver Star, the DD Form 214 cannot be corrected.

2.  The applicant's records show he received "excellent" conduct and efficiency ratings throughout his service and that he was fully qualified for reenlistment.  There is no record of evidence showing a commander's disqualification.  Therefore, the applicant is entitled to the first award of the Army Good Conduct Medal based on completion of a qualifying period of service from 10 October 1967 to 2 September 1969 ending with the termination of his qualifying period of Federal military service.

3.  Records show the applicant's unit received the Valorous Unit Award and the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tour of duty in the Republic of Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show these two unit awards.

4.  Records show the applicant was awarded the Vietnam Service Medal.  Records also show he participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars to be affixed to his previously-awarded Vietnam Service Medal.

5.  Records show he served in the Republic of Vietnam from 1 April 1968 to 29 March 1969 with the time duration calculated at 11 months and 29 days.  Therefore, the applicant's DD Form 214 should be corrected to show his foreign service as 11 months and 29 days.

6.  If the applicant has orders for the Bronze Star Medal, he may request reconsideration of this portion of his request with a copy of those orders.

7.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects his right to pursue his claim for the Silver Star 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 

___x_____  ____x____  ___x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 (1st Award) for the period 10 October 1967 through 2 September 1969;

	b.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	c.  adding to item 24 of his DD Form 214 the:

* Army Good Conduct Medal
* Vietnam Service Medal with four bronze service stars
* Valorous Unit Award
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

	d.  deleting from item 22c of his DD Form 214 the entry in year, month, and day format "10 11 29" and inserting "00 11 29."

2.  The Board further determined 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 correction of his DD Form 214 to show award of the Bronze Star Medal or the Silver Star.



      ____________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)                                         AR20100001081



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ABCMR Record of Proceedings (cont)                                         AR20100001081



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