IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110018665 


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 (Certificate of Release or Discharge from Active Duty) to show the award of the Silver Star, Legion of Merit, Bronze Star Medal, and Combat Infantryman Badge.

2.  The applicant states, in effect, his commander told him that he was going to recommend him for both the Silver Star and Bronze Star Medal for his performance while assigned to Company D, 709th Maintenance Battalion.  Further, his retirement award was downgraded from a Legion of Merit to a Meritorious Service Medal and he would like his record corrected.

3.  The applicant provides a self-authored statement.

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 enlisted in the Regular Army on 7 December 1967 and served continuously through several reenlistments.  He was trained in and awarded military occupational specialties (MOS) 63C (General Vehicle Repairman), 63B (Light Vehicle Mechanic), and 63H (Track Vehicle Repairer) during his period of service.  He retired from active duty on 31 December 1989.

3.  General Orders Number 5634, dated 16 May 1969, issued by Headquarters, 9th Infantry Division, awarded him the Army Commendation Medal with Oak Leaf Cluster for meritorious service in conjunction with military operations against a hostile force in the Republic of Vietnam for the period 1 May 1968 to 30 April 1969, while assigned to Company D, 709th Maintenance Battalion.

4.  His DA Form 20 (Enlisted Personnel Record) shows he served as a general vehicle repairman during his tour of duty in the Republic of Vietnam.

5.  His records do not contain any documentation showing he was recommended for or awarded the Silver Star, Legion of Merit, Bronze Star Medal, or Combat Infantryman Badge.

6.  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 Bronze Star Medal or Silver Star orders pertaining to the applicant.

7.  In support of his application, the applicant provides a self-authored statement.  He states his commander told him that he had recommended the applicant for the Silver Star and the Bronze Star Medal based on his normal shop maintenance duties and his additional duties of driving to Tantan, Vietnam to pick up rations and then driving to Tan Son Nhut Air Base to pick up potable water for the mess hall.  He recalled being involved on at least two occasions in incidents where the Viet Cong blew up the Benluc Bridge.  He also contends he had two Meritorious Service Medals downgraded to Army Commendation Medals and his retirement award was downgraded from the Legion of Merit to a Meritorious Service Medal.

8.  Army Regulation 600-8-22 (Military Awards) provides for the following awards: 

   a.  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.  
   b.  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.

   c.  The Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty, or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  
   
   d.  The Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.  
   
   e.  All personal decorations require formal recommendations, approval through the chain of command, and announcement in orders.
   
9.  Title 10 of the U.S. Code, section 1130 (10 USC 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 award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

10.  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, Soldier Programs and Services Division,
1600 Spearhead Division Avenue, Fort Knox, Kentucky  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 contends that his DD Form 214 should be corrected to show the Silver Star, Bronze Star Medal, Legion of Merit, and Combat Infantryman Badge because he was recommended for these awards.

2.  His service in Vietnam is not in question.  However, there is no available evidence confirming he held an infantry MOS and/or was assigned to an infantry unit that was actively engaged in ground combat with the enemy.  Accordingly, he is not entitled to the Combat Infantryman Badge.

3.  There are no orders or any other Army records that show he was awarded or recommended for the Silver Star or Bronze Star Medal so it would be inappropriate to add these awards to his DD Form 214.

4.  While the available evidence is insufficient for correcting his records to show the Silver Star or Bronze Star Medal, this in no way affects his right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  The applicant contends that his retirement award was unjustly downgraded from the Legion of Merit to the Meritorious Service Medal; however, there is no evidence to support his claim that he was recommended for the higher award or that the downgrading of his award was somehow unjust.  Without evidence to the contrary, it is presumed his award processing was in accordance with regulatory guidance and no correction is required.  He may also request upgrade of this award to the Legion of Merit under the provisions of 10 USC 1130.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20110018665



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ABCMR Record of Proceedings (cont)                                         AR20110018665



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