IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20120000335 


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, through his Member of Congress, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Bronze Star Medal, Air Medal, and Army Good Conduct Medal.

2.  The applicant previously requested promotion to the rank of sergeant/E-5.  He also submitted a simultaneous application through his Member of Congress requesting several awards and decorations.  The original Record of Proceedings addressed the issue of the rank but not the awards and decorations.

3.  The applicant states:

* He served in Vietnam with C Company, 3rd Battalion, 8th Infantry, 4th Infantry Division and he was transferred to D Company, 1st Battalion, 5th Cavalry, 1st Cavalry Division
* He made numerous combat air assaults, many in hot landing zones; he was also involved in many firefights, specifically a hill that was referred to as Firebase Incoming
* He was issued the Air Medal and the Army Good Conduct Medal but he does not have the orders nor did he think it was his responsibility to keep the orders
* His installation clearance record shows he was awarded the Air Medal on 24 July 1968 and also shows his conduct and efficiency ratings were “excellent” despite receiving two Article 15 for minor offenses


4.  The applicant provides:

* Multiple letters to and from his Member of Congress
* Multiple letters to and from the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX)
* Reconstructed DA Form 638 (Recommendation for Award)
* Self-authored letter
* Denial letter from HRC-KNX
* DA Form 137 (Installation Clearance Record)
* Photograph of selected ribbons
* A listing of platoon members
* An article from a newsletter in Vietnam
* Memorandum, dated 6 April 1968, Subject: Battalion Statistics 3rd Battalion, 8th Infantry, for the Period 21 March through 2 April 1968
* Extract of a combat action report, 3rd Battalion, 8th Infantry
* Unit Orders Number 8, dated 22 March 1968 (Acting Sergeant)
* Special Orders Number 212, dated 30 July 1968 (reassignment to the 1st Cavalry Division)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Self-authored summary of his military service
* Email verification of his service with the 3rd Battalion, 8th Infantry
* Wikipedia search/printout of General Westmoreland biography
* Other computer printouts of General Westmoreland
* Wikipedia search/printout of General Peers
* A photograph of a Vietnam Zippo lighter
* A citation and internet printouts for award of the Silver Star to a captain
* Email exchange with former unit members
* A listing of 3rd Battalion, 8th Infantry Soldiers who have died since Vietnam
* After Action Report of the 3rd Battalion, 8th Infantry, from 21 March 1968 to 2 April 1968
* Personnel roster of Company C, 3rd Battalion, 8th Infantry
* Hand-written notes, phone numbers, addresses, and other information
* Obituary of former U.S. Army Soldier

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 records show he was inducted into the Army of the United States on 20 February 1967 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 18 April 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his appointed place of duty on 17 April 1967.

4.  Subsequent to MOS training, he served in the Republic of Vietnam from 5 August 1967 to 5 August 1968.  He was assigned to:

* Company C, 3rd Battalion, 8th Infantry, 4th Infantry Division, from on or about 18 August 1967 to 18 May 1968
* Company D, 1st Battalion, 5th Cavalry, 1st Cavalry Division, from 23 May 1968 to 3 August 1968

5.  Special Orders Number 280, issued by Headquarters, 4th Infantry Division, on 7 October 1967, awarded him the Combat Infantryman Badge.

6.  General Orders Number 9008, issued by Headquarters, 1st Cavalry Division, on 25 July 1968, awarded him the Army Commendation Medal for meritorious service from May 1968 to August 1968.

7.  He outprocessed Company D, 1st Battalion, 5th Cavalry in Vietnam.  His DA Form 137 shows the following entries:

* EM (enlisted member) received the Combat Infantryman Badge and the Air Medal
* EM has been submitted for the Army Commendation Medal
* Conduct: Excellent; Efficiency: Excellent

8.  Subsequent to completion of his Vietnam tour, he was reassigned to Company A, 4th Battalion, 2nd Advanced Individual Training Brigade, U.S. Army Training Center, Fort Ord, CA.

9.  On 22 October 1968, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order. 

10.  His records do not contain official orders awarding him the Bronze Star Medal, Air Medal, or Army Good Conduct Medal.

11.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 38 (Record of Assignments) he received "excellent" conduct and efficiency ratings throughout his military service
* Item 41 (Awards and Decorations) no listing of the Bronze Star Medal, Air Medal, or Army Good Conduct Medal

12.  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 United States Army Human Resources Command, failed to reveal any orders for the Bronze Star Medal, Air Medal, or the Army Good Conduct Medal.

13.  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 26 December 1968.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Campaign Medal
* Vietnam Service Medal
* Army Commendation Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar 

14.  On 19 April 2011, in response to various letters from or through his Member of Congress, HRC-KNX notified him that:

	a.  A review of the applicant's records did not reveal orders announcing the Bronze Star Medal.  HRC officials further explained the procedures under Title 10, USC, section 1130 regarding the Bronze Star Medal.

	b.  A review of the applicant's records did not reveal he was awarded the Army Good Conduct Medal.  Additionally, he received two Article 15 reprimands and as such, HRC officials were unable to verify his entitlement to the Army Good Conduct Medal.

	c.  A review of the applicant's records did not reveal orders announcing the Air Medal.  HRC officials further explained the criteria for award of the Air Medal.

	d.  HRC officials also addressed his issues regarding the Air Assault Badge (badge was not authorized until 1 April 1974), Air Force Combat Action Medal and Air Force Aerial Achievement Medal (he never served in or was attached to an Air Force unit).

15.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

16.  Army Regulation 600-8-22 states the Air Medal 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.

17.  U.S. Army Vietnam Regulation 672-1 provided guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

18.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal 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.

19.  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 the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.  

20.  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.  With respect to the Bronze Star Medal:

	a.  the governing Army regulation states that for personal decorations (which include the Bronze Star Medal) formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of official orders, there is insufficient evidence to correct his records to show the Bronze Star Medal.

	b.  the applicant's service in Vietnam is not in question.  However, the decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Almost 40 years have passed since the applicant's service in Vietnam and the ABCMR is not privy to the decision process used that time.  That is why the regulation requires for all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders.  Since no orders are available there is insufficient evidence in which to grant his request

	c.  Nevertheless, 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 10 USC 1130.

2.  With respect to the Air Medal:

	a.  there are no general orders available showing the applicant was awarded the Air Medal.  The entry on his outprocessing record (DA Form 137) that shows he was awarded the Combat Infantryman Badge and the Air Medal is not in question.  However, unlike the Combat Infantryman Badge, there are no official orders in the applicant's records to support this entry.

	b.  the governing regulation requires a formal recommendation, approval through the chain of command, and announcement in orders for award of the Air Medal.  In the absence of orders or other independent evidence that would confirm he completed the number of missions necessary to be awarded the Air Medal, there is insufficient evidence upon which to base award of the Air Medal in this case.

3.  With respect to the Army Good Conduct Medal: 

	a.  He received "excellent" conduct and efficiency ratings during his military service.  However, he also accepted NJP on two occasions.  The Army Good Conduct Medal is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by their exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service.

	b.  There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.  There is neither a favorable recommendation nor any official orders to support his contention that he was awarded the Army Good Conduct Medal. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20120000335





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ABCMR Record of Proceedings (cont)                                         AR20120000335



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