RECORD OF PROCEEDINGS


         IN THE CASE OF:
        


         BOARD DATE: 20 November 2003
         DOCKET NUMBER: AR2003086564


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Linda D. Simmons		Member
Mr. Robert L. Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he be awarded the Purple Heart.

2. The applicant states that he suffers from an acoustic trauma received from artillery during combat. He claims that his condition is now service connected and that the wounds to his middle ear qualify him for a Purple Heart.

3. The applicant provides no supporting evidence other than to point out that his file is located at the Department of Veterans Affairs (VA), Regional Office, Roanoke, Virginia.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error, which occurred on 7 May 1968. The application submitted in this case is dated 15 January 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant was inducted and entered active duty on 3 August 1966. He completed basic combat training and began advanced individual training and was awarded military occupational specialty 76Y20 (Supply Specialist).

4. The applicant was then assigned to Fort Lee, Virginia on 21 October
1966. He was then transferred to the Republic of Vietnam (RVN) on 10 April 1967 and assigned to the 525th Quartermaster Company, for duty.

5. On 12 December 1967, the applicant accepted nonjudicial punishment,
for failing to obey a lawful order issued by a commissioned officer and also for being disorderly on 16 November 1967. His punishment included forfeiture of $30.00 pay and restriction and extra duty for 14 days.

6. On 4 May 1968, the applicant returned to the United States and was stationed at Fort Lee, Virginia. On 7 May 1968, he was released from active duty, under the provisions of Army Regulation 635-200, section VII, chapter 5 as an Overseas Returnee. He was transferred to the United States Army Reserve (USAR) for completion of his obligation of service. He was credited with 1 year, 9 months and 5 days of active military service and had no lost time. The highest rank he attained was pay grade E-4. The available records do not show that the applicant was awarded the Good Conduct Medal. However, there is no evidence that his unit commander disqualified him from award of the Good Conduct Medal. His conduct and efficiency ratings were excellent from 3 August 1966 to 7 May 1968.

7. The applicant’s service medial records at the time of his separation, his DD Form 214, item 24 (Decorations, Awards), shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device and the Expert Qualification Badge with Rifle Bar (M-14). It does not show the award of the Purple Heart.

8. However, the applicant DA Form 20 (Enlisted Qualification Record) does show the following information: Item 31 (Foreign Service) it shows he was stationed at an overseas command from 11 April 1967 through 4 May 1968, Item 39 (Campaigns) shows he only participated in one campaign, the Vietnam Counteroffensive Phase II commencing on 30 June 1966 and ending on 31 May 1967, and in Item 40 (Wounds) there is no entry made which shows he was wounded in action.

9. In addition, the applicant’s name does not appear on the Vietnam Casualty List for wounds received while in action.

10. Army Regulation 600-8-22 provides that the Vietnam Service Medal is authorized for all members of the armed forces who served in Vietnam or its contiguous waters or airspace during the period 3 July 1965 through 28 March 1973. Service on temporary duty must have been for 30 consecutive days
or 60 nonconsecutive days. The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal. The applicant's record shows that he served from 11 April
1967 through 4 May 1968 within the following campaigns periods. The Vietnam Counteroffensive Phase II, ending 31 May 1967; the Counteroffensive Phase III, ending 29 January 1968; the Tet Counteroffensive, ending on 1 April 1968; and the Counteroffensive IV, ending on 30 June 1968. Therefore he is entitled to
four bronze service stars for wear on his Vietnam Service Medal.

11. Department of the Army General Orders 8 of 1974 awarded the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army, Vietnam and subordinate units for the period 20 July 1965 to 28 March 1973.

12. A 23 April 2002, DA Form 1577 (Authorization for Issuance of Awards) prepared by the Army Reserve Personnel Center, added the Good Conduct Medal, to the above list of authorized awards.

13. Army Regulation 600-8-22 (Military Awards) provides policy and criteria concerning individual military decorations. It provides for award of the Purple Heart to any member of an Armed Force who has been wounded or killed in any action against an enemy of the United States. The wound must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

14. Army Regulation 600-8-22 also provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. A record of punishment is not automatically disqualifying. However, at that time, a single efficiency rating of less than excellent was disqualifying. Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified. Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond. At that time, nonfavorable consideration was normally noted on the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1. After reviewing the available documents it was determined that the applicant’s records do not show he was treated for any injuries as a result of hostile action. He also fails to provide any documentation, which would show that he would qualify for award of the Purple Heart. Therefore, in the absence of evidence that the applicant was treated with a combat injury, there is insufficient evidence upon which to base award of the Purple Heart.

2. His awards should also amended to award him the Good Conduct Medal as listed on the 23 April 2002 list from the NPRC. The applicant distinguished himself by his conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.

3. The applicant is also entitled to four bronze service stars for wear on his Vietnam Service Medial based on his participation in three campaign periods during his service in the RVN from 11 April 1967 to 4 May 1968. These awards should be added to his DD Form 214.

5. The VA operating under its rules and regulations can assign disability (pension) ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its medical records.
6. Records show the applicant should have discovered the error or injustice now under consideration on 7 May 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 May 1971. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file.

7. Evidence shows that the applicant’s records contain administrative errors, which do not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

JL LDS RD DENY APPLICATION


1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.

2. The Board determined that administrative errors in the record of the individual concerned should be corrected. Therefore, the Board requests that the Army Review Boards Agency Support Division-St. Louis administratively correct the DD Forms 214 for the period ending 7 May 1968 of the individual concerned and amend his records to show he was awarded the Good Conduct Medal, four bronze service stars for wear on his Vietnam Service Medal, and the RVN Gallantry Cross with Palm Unit Citation.

                  ______________________
                  CHAIRPERSON

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MEMORANDUM FOR RECORD

SUBJECT: ABCMR Record of Proceedings


1. Reference ABCMR Case Numbers AR2003089185, AR2003090926, AR2003085199, AR2003098945, AR2003090923, AR2003090057, AR2003092852, AR2003089184, AR2003086983, AR2003090233, AR2003087428, AR2003091296, AR2003086564, AR2003090872, AR2003086107, AR2003089598, AR2003088131, AR2003084919, AR2003093189.


2. This certifies the ABCMR panel vote of referenced cases on 20 November 2003.

3. I disagree with so much of the BOARD DETERMINATION/RECOMMENDATION, which states that “the Board does not excuse the applicant’s failure to timely file within the time proscribed by law and this application is denied for that reason.” I would deny relief solely on the basis that the applicant has failed to show error or injustice. This represents a minority opinion.



Signed
                                                      Joann H. Langston
                                                      Chairperson

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INDEX

CASE ID	AR2003086564
SUFFIX
RECON
DATE BOARDED	2003.11.20
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1968.05.07
DISCHARGE AUTHORITY	635-200 SEC vii, ch 5
DISCHARGE REASON	RELEASE FROM ACTDU
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A107.0015
2.	A107.0111
3.	A107.0056
4.	A107.0094
5.
6.