IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007237 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by:

* awarding him the Army Good Conduct Medal (AGCM) and adding it to his DD Form 214
* adding the already-awarded Army Commendation Medal (ARCOM) with "V" Device to his DD Form 214

2.  The applicant further requests consideration be given to upgrading the already-awarded ARCOM with "V" Device to a Silver Star (2nd Award).

3.  The applicant states the ARCOM was omitted from his DD Form 214 because during the action for which he was cited, all the unit officers were either wounded or killed and no one was left to determine which award he should receive, so the decision was left up to the 25th Infantry Division.  Unfortunately, the 25th Infantry Division was being withdrawn from Vietnam and his award was lost in the shuffle.

4.  The applicant provides a copy of his DD Form 214 and ARCOM orders.

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 military records show he was inducted into the Army of the United States on 11 March 1969.  He served in the Republic of Vietnam from 26 August 1969 to 23 August 1970 and was assigned to Company A, 3rd Battalion, 22nd Infantry, 25th Infantry Division.  He was honorably released from active duty on 30 December 1970.

3.  The applicant's records show he was a good Soldier.  There are no records of nonjudicial punishments under Article 15 of the Uniform Code of Military Justice and no record of courts-martial or any other type of adverse action.  Additionally, his DA Form 20 (Enlisted Qualification Record) shows he received "excellent" conduct and efficiency ratings throughout his service.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the following:  National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Silver Star, ARCOM, Bronze Star Medal, Air Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  Army Regulation 672-5-1 (Military Awards), in effect at the time, established the policies and procedures for the military awards program.  It provided that recommendations for decorations would be submitted on a DA Form 638 (Recommendation for Award) to the appropriate awarding authority.  The awarding authority would either approve or disapprove the recommended award and, if disapproved, consider the award of a lesser, but appropriate decoration.  Timeliness was essential to the awards program.  To insure that a deserving act, achievement, or service received recognition, the appropriate awarding authority would promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award.  If the higher award was approved, the interim award was rescinded and the decoration returned by the recipient.

6.  General Orders 4377, dated 20 April 1970, show the applicant was awarded the ARCOM with "V" Device (1st Oak Leaf Cluster) for heroism in connection with military operations against a hostile force on 20 February 1970.  There is no DA Form 638 available to provide information and shed light as to the actual nature of the recommended award (i.e., recommended for the Silver Star) or whether the ARCOM with "V" Device was approved as a downgraded award or an interim award pending further review of applicant's heroic actions.

7.  Army Regulation 672-5-1 also provided that the AGCM was awarded to individuals who completed a qualified period of active duty enlisted service.  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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

8.  A review of the applicant's DD Form 214 indicates he is entitled to additional awards that are not shown on this form.

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units which served in the Vietnam War.  This document shows the 3rd Battalion, 22nd Infantry, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 5, dated 1973, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 51, dated 1971, during the period the applicant was assigned.

10.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that participation credit was awarded for four campaigns during the applicant's tour of duty in Vietnam.  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.  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.

12.  The request to upgrade the applicant's ARCOM with "V" Device to a Silver Star, along with a DA Form 638, must be submitted through a Member of Congress to U.S. Army Human Resources Command, AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The applicant's unit of assignment 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 available evidence is insufficient for upgrading the applicant's ARCOM with "V" Device to a 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.

2.  General Orders 4377 awarded the applicant the ARCOM with "V" Device (1st Oak Leaf Cluster).  Therefore, his DD Form 214 should be corrected to show this award.

3.  The evidence of record shows the applicant received "excellent" conduct and efficiency ratings, he had no adverse actions, and no commander's disqualification for award of the AGCM.  Therefore, he is entitled to award of the AGCM for the period 11 March 1969 to 30 December 1970 and correction of his records to show this award.

4.  The evidence of record also shows the applicant is entitled to wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, the applicant is entitled to correction of his records to show these awards.

5.  The applicant participated in four campaigns during his service in Vietnam.  Therefore, the applicant is entitled to correction of his records to show award of four bronze service stars to be worn on his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

____x____  ___x_____  ___x_____  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 AGCM for the period 11 March 1969 through                30 December 1970;

	b.  adding to his 30 December 1970 DD Form 214 the ARCOM with "V" Device (1st Oak Leaf Cluster), the AGCM, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

	c.  showing he is entitled to wear four bronze service stars affixed to his already-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 upgrading his ARCOM with "V" Device to a 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)                                         AR20100007237



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ABCMR Record of Proceedings (cont)                                         AR20100007237



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