IN THE CASE OF:	

		BOARD DATE:	    31 January 2012

		DOCKET NUMBER:  AR20110014837 


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 his record be corrected to show award of the Bronze Star Medal (BSM) with “V” (Valor) Device.  

2.  The applicant states he believes the BSM with “V” Device he was recommended for based heroism in the Republic of Vietnam (RVN) on 1 February 1968 was mistakenly downgraded to an Army Commendation Medal (ARCOM) with “V” Device.  

3.  The applicant provides a BSM with “V” award recommendation packet 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 record shows the applicant initially entered active duty on 18 April 1957 and served continuously until being honorably retired, in the rank of master sergeant/E-8 (MSG/E-8) on 31 January 1980.  

3.  The record shows the applicant served in the Republic of Vietnam (RVN) from 31 July 1967 through 23 April 1969.  His Military Personnel Records Jacket (MPRJ) contains 18th Engineer Brigade General Order Number 277, dated 8 April 1968 which awarded him the ARCOM with “V” Device for heroism in the RVN on 1 February 1968, with the accompanying citation.  

4.  The applicant’s record shows he was honorably retired on 31 January 1980, and the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he earned the following awards during his active duty tenure:

* National Defense Service Medal 1st Oak Leaf Cluster (2nd Award)
* ARCOM with “V” Device 2nd Oak Leaf Cluster (3rd Award)
* Master Parachutist Badge
* United Nations Service Medal
* Armed Forces Expeditionary Medal 1st Oak Leaf Cluster (2nd Award)
* Presidential Unit Citation
* RVN Gallantry Cross with Silver Star
* Korean Service Medal with 2 silver service stars
* Vietnam Service Medal 
* RVN Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle Bar
* Driver Badge
* Army Good Conduct Medal 7th Award
* Meritorious Service Medal

5.  The record is void of any indication that the applicant ever questioned the award downgrade between when the ARCOM with “V” device was awarded on 
8 April 1968, and his retirement on 31 January 1980, or at the time of his retirement.  

6.  The applicant provides a United States Army Vietnam (USARV) Recommendation for Decoration for Valor or Merit in which his unit commander recommended he be awarded the BSM with “V” Device for his valorous actions in the RVN on 1 February 1968.  The form shows his battalion commander recommended approval and it is accompanied by a proposed citation and eye witness account of the applicant’s actions.  The remaining portion of the form containing approval by the appropriate award approval authority was not included in the packet.  
7.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 1-16 provides guidance on reconsideration/appeal of disapproved or downgraded award recommendations.  It states a request for reconsideration or the appeal of a downgraded or disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority’s decision.  One time reconsideration by the award approval authority will be conclusive.  However, pursuant to 10 USC 1130, a member of Congress can request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a recommendation.  Recommendations are submitted for reconsideration or appeal only if new, substantive and material information is furnished and the time limits do not prevent such action. Requests for reconsideration or appeal must be forwarded through the same official channels as the original recommendation. The additional justification for reconsideration or appeal must be in letter format, not to exceed two single-spaced typewritten pages. A copy of the original recommendation, with all endorsements, and the citation must be attached. If the original recommendation is not available, a new/reconstructed recommendation should be submitted. 

8.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-14 contains guidance on award of the BSM.  It states, in pertinent part, that awards may be made for acts of heroism, performed under circumstances described above, which are of lesser degree than required for the award of the Silver Star.  Paragraph 3-17 contains guidance on award of the ARCOM.  It states awards may be made for acts of valor performed under circumstances described above which are of lesser degree than required for award of the BSM.  

9.  Title 10 of the 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 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to be awarded the BSM with “V” Device has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  In this case, as evidenced by the award recommendation packet submitted by the applicant, his unit and battalion commanders recommended he be awarded the BSM for his heroic actions in the RVN on 1 February 1968.  However, it is equally clear, as evidenced by the ARCOM with “V” Device orders with citation on file in his MPRJ, the subjective opinion of the award approval authority after reviewing the award recommendation submitted on the applicant was that the ARCOM with “V” Device was the appropriate award to recognize the applicant’s valorous action in the RVN on 1 February 1968.  

3.  The applicant’s record is void of any indication that he requested reconsideration or appealed the downgrade of the award in question within the timeframe established by the governing regulation, or that shows he ever questioned the decision or attempted to resolve the matter in the more than 
12 years he remained on active duty prior to retirement, or at the time of his retirement more than 40 years ago.  Therefore, absent new evidence not included with the original award recommendation packet, it would not be appropriate for this Board to amend the original decision of the award approval authority.  

4.  While there is insufficient documentation and evidence for the Board to reverse the original downgrade decision made by the award approval authority, this in no way affects the applicant’s right to pursue his claim for award of the BSM with “V” Device with an award recommendation and supporting evidence through his Member of Congress under the provisions of Title 10 of the U.S. Code, section 1130.  

5.  The applicant and all others concerned should know that this action related to award of the BSM with “V” Device in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  



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)                                         AR20110014837



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ABCMR Record of Proceedings (cont)                                         AR20110014837



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