IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110008659 


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 effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* his Republic of Vietnam (RVN) service with the "9th Inf[antry] Delta Dogs arty [artillery]
* a Bronze Star Medal (BSM)

2.  The applicant states:

* he was assigned to the 9th Infantry Delta Dogs Artillery Support Unit during the period November 1969 through September 1970 and his
DD Form 214 does not show this assignment
* his unit was in Cambodia, Shakey Hill, during the period May through June 1970
* his battery commander promised him award of the BSM
* his record of duty assignments were lost or misplaced when he separated
* he was told overseas assignments were not recorded or reflected on the DD Form 214
* he contracted malaria, was exposed to Agent Orange, and has post traumatic stress disorder (PTSD) from the special operations he performed
* he has filed a disability claim 

3.  The applicant provides self-authored statements.

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 on 20 June 1969.  He completed training and was awarded military occupational specialty 13A (Field Artillery).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

* in item 31 (Foreign Service), service in the RVN from 20 November 1969 to 21 January 1970
* in item 38 (Record of Assignments):

* Battery A, 2nd Battalion, 4th Field Artillery, 3rd Brigade, 9th Infantry Division from 2 December 1969 to 7 September 1970
* Headquarters and Headquarters Battery (HHB),1st Battalion, 30th Artillery, 1st Cavalry Division from 8 September 1970 to 15 September 1970

* in item 41 (Awards and Decorations), no BSM

4.  The applicant's DD Form 214 shows he was inducted on 20 June 1969 and released from active duty (REFRAD) on 29 December 1970.  It further shows:

* in item 12 (Last Duty Assignment and Major Command), "B BTRY 1/30 1 CAV DIV USARV [B Battery, 1st Battalion, 30th Artillery, 1st Cavalry Division]
* in item 22c (Foreign and/or Sea Service), 1 year, 1 month, and 10 days
* in item 24 (Decorations, etc.), no BSM
* in item 30 (Remarks), "RVN:  20NOV69-29DEC70"



5.  The available records do not contain evidence of service in Cambodia; however, U.S. forces, including the 1st Cavalry Division and 3rd Brigade, 9th Infantry Division participated in the Cambodian Incursion between 1 May 1970 and 30 June 1970.

6.  There are no orders in the applicant's records showing he was awarded the BSM.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, did not reveal orders announcing award of the Bronze Star Medal to the applicant.

7.  On 21 December 1970 prior to leaving the RVN, the applicant signed a MACV Form 270 (Malaria Debriefing) indicating:

* he had been taking anti-malaria tablets weekly and that he would take one tablet a week for eight weeks following his departure  from Vietnam
* he had been taking "DDS" tablets and that he would take one tablet per day for 30 days following his departure from Vietnam
* he had received the necessary tablets

8.  Standard Form 88 (Report of Medical Examination) shows that on 29 December 1970, the applicant was examined and determined to be qualified for separation.  Additionally, the applicant signed the form indicating, "I'm in good health."

9.    Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation established standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated that:

	a.  the separating Soldier's last duty assignment and the Major Command to which it was subordinate would be entered in item 12 of the DD Form 214.

	b.  the total active duty service outside the continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed would be entered in item 22c of the DD Form 214.  There was no provision for capturing travel associated with temporary duty performed.



10.  Army Regulation 600-8-22 (Military Awards) states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

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, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  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.  The applicant's request that his DD Form 214 be corrected to show service with Battery A, 2nd Battalion, 4th Field Artillery, 3rd Brigade, 9th Infantry Division and award of the BSM was carefully considered.

2.  Concerning the BSM, the evidence of record does not show the applicant was recommended for or awarded the BSM.  In the absence of such evidence, there is no basis for correction of his record to show this award.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10,
U.S. Code, section 1130.

3.  The applicant served with two units in the RVN.  His last unit of assignment was HHB, 1st Battalion, 30th Artillery, 1st Calvary Division.  He served with this unit from 8 September 1970 to on or about 29 December 1970 when he was returned to the U.S. and REFRAD.

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)                                         AR20110008659



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ABCMR Record of Proceedings (cont)                                         AR20110008659



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