IN THE CASE OF:	  

		BOARD DATE:	 1 February 2011

		DOCKET NUMBER:  AR20100017420 


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) to show award of the Combat Infantryman Badge (CIB) and the Air Medal (AM).

2.  He states he was an observer in the O-1 Bird Dog airplane and flew over 100 hours on a voluntary basis.  He was told if he flew 100 hours he would receive an AM.  He maintains there were numerous times when they were fired upon and had to return fire.  He kept a partial log of his time in the air, dates, pilots, aircraft number, and landings.  This information can be verified with the pilots.  He flew with the 219th Aviation Platoon, in Kontum, Vietnam.

3.  He provides:

* DD Form 214
* news release, dated 15 February 1968
* Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD))
* unit history information for the 57th Assault Helicopter Company (AHC)
* photographs
* newspaper article titled, "Brothers Leave U.S. Same Day for War"
* mission log


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 23 November 1966.  After completing basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was honorably released from active duty on 23 August 1968.

3.  He provided two statements in support of his VA claim for PTSD.  In these statements he recalled two incidents that occurred on 15 January 1968 and 30 January 1968.  He described firing rockets and throwing hand grenades out of the Bird Dog at North Vietnamese forces on 15 January 1968.  When they ran out of rockets and hand grenades they returned to the airport three times to reload.  On 30 January 1968, three units crashed into the Military Assistance Command-Vietnam (MACV) compound, post office, airfield, and the 24th Aviation Special Tactical Zone Headquarters.  The fighting lasted for 4 days and they sustained mortar and ground attacks.  He did not know how many Soldiers were killed; however, the North Vietnamese had over 785 casualties.

4.  The unit history information for the 57th AHC shows the company, as well as Kontum City, were under siege from 29 January 1968 to 31 January 1968.  The article stated that due to the Tet Offensive, the 57th AHC was forced to fly its aircraft the maximum amount of time physically possible.  Many hours of additional blade time were logged as they provided continuous illumination and protection.

5.  He provided a news release, dated 15 February 1968, that described a heavy fight occurring in Kontum, South Vietnam, that had moved outside of the city on 6 February 1968 for the first time in a week.  The author stated it was reported that 12 American Soldiers were killed and 151 were wounded.  The South Vietnamese forces lost 17 Soldiers and 86 were wounded.

6.  He provided a handwritten log that lists the date, pilot, flight time, aircraft number, and landings.  However, this is not an official document and contains no signatures or verification.

7.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 1 May 1967 to 24 April 1968.  Item 38 (Record of Assignments) shows he was assigned to Advisory Team 24, II Corps Advisory Group, MACV, in duty MOS 11B with the principal duty title of security guard.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the CIB or the AM.  His military service records do not contain any orders awarding him the CIB or the AM.

9.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web-based index containing U.S. Army general orders issued between 1965 and 1973 for the Vietnam era, does not contain orders awarding him the AM.

10.  Army Regulation 600-8-22 (Military Awards) states there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

11.  MACV Directive 672-1 (Awards and Decorations) provided for award of the CIB.  Appendix 3 to annex A of this directive listed advisor positions in MACV which were considered infantry positions and for which award of the CIB was authorized.

12.  Army Regulation 600-8-22 provides that the AM is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

14.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 the 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.

15.  The 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, ATTN:  
AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  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.  There is no evidence in the available records to show the applicant was awarded or entitled to award of the CIB.  Although the evidence shows he held an infantry MOS and performed infantry duties in a military advisory unit, there is no evidence to show he was personally present while the unit was engaged in active ground combat and actively participated in such ground combat.

2.  The applicant's military personnel record and ADCARS do not contain orders awarding him the AM.  There is no evidence of record that shows he was recommended for or awarded the AM by higher authority.  Although he provided a handwritten copy of an aircraft log that he maintains can be verified with the pilots, the ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application.  Therefore, there is insufficient evidence to award him the AM or to add this award to his DD Form 214.

3.  While the available evidence is insufficient for awarding him the AM, this in no way affects his right to pursue his claim for the AM 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 

________  ________  ________  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 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)                                         AR20100017420



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ABCMR Record of Proceedings (cont)                                         AR20100017420



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