IN THE CASE OF:  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120007936 


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, either upgrade of his Bronze Star Medal to a Silver Star, or that the "V" device be added to his Bronze Star Medal. 

2.  The applicant states:

	a.  the attached description of the firefight, and supporting letters, supports his belief that Staff Sergeant (SSG) M____ wanted to make sure that he (the applicant) received no recognition for his role in discovering the enemy, placing direct fire on their positions, and breaking up their attack plan before they could get into position.  

	b.  this is the right thing to do and failure to acknowledge his actions and leadership will continue to provide a false history of this engagement.

	c.  an e-mail from Sergeant (SGT) F____ relates his observations and expresses his gratitude for the applicant's actions.  The Ivy Leaf newspaper article about "Slay 10" is wrong by design of SSG M____.  The applicant claims he was the one who eliminated the first six North Vietnamese Army (NVA) soldiers in less than two minutes.

3.  The applicant did not provide any documentation in support of his request.



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 on 13 July 1966.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in item 41 (Awards and Decorations) the:

* Vietnam Service Medal
* National Defense Service Medal
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* First Class Gunner Marksmanship Qualification Badge with Machinegun Bar

4.  The applicant was honorably released from active duty on 3 July 1968 as a SGT.  He had completed 1 year, 11 months, and 20 days of active duty service. 

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the:

* National Defense Service Medal 
* Vietnam Service Medal 
* Republic of Vietnam Campaign Medal 
* Combat Infantryman Badge

6.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) issued on 29 June 2001 shows: 

	a.  the following awards were added:
* Bronze Star Medal
* Good Conduct Medal
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Presidential Unit Citation

	b.  a statement was added to item 30 (Remarks) showing the applicant served in Vietnam from 10 August 1967 to 30 June 1968.

7.  There are no available orders or other evidence showing the basis for the Bronze Star Medal.

8.  Army Regulation 600-8-22 (Military Awards) provides that:

	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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

	c.  The bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal.  

9.  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.

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.  As there is no available evidence showing the basis for the Bronze Star Medal, there is insufficient evidence to show that the applicant's actions rose to the level of the Silver Star or involved acts of heroism involving conflict with an armed enemy sufficient for award of the "V" device. 

2.  While the available evidence is insufficient for correcting the applicant's records to show award of the Silver Star or the "V" device for his Bronze Star Medal, this in no way affects his right to pursue his claim for the awards 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 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)                                         AR20110020880



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ABCMR Record of Proceedings (cont)                                         AR20120007936



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