RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 December 2003
         DOCKET NUMBER: AR2003088651


         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
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Allen L. Raub		Member
Mr. Kenneth W. Lapin		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 was wounded by a mortar attack. He still has shrapnel in his neck as the X-rays held by the Department of Veterans Affairs (VA) Medical Center, Des Moines, Iowa will show. He was also awarded the Bronze Star Medal for his actions during that time.

3. He dates the discovery of the alleged error or injustice as 18 February 2003 but does not explain why it took approximately 30 years to discover. He also does not explain why the Board should find it in the interest of justice to consider the case.

4. The applicant provides copies of his various DD Forms 214 (Certificates of Release or Discharge from Active Duty), Honorable Discharge Certificates and a copy of the presentation certificate for the Bronze Star Medal for meritorious achievement for the period 27 June to 18 June 1968.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offered no argument or evidence beyond that submitted with the application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 31 January 1973, the date of his retirement. The application submitted in this case is dated18 February 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.

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3. The applicant served in the Navy from 5 November 1947 to 30 January 1948 and in the Regular Army from 2 May 1950 to 22 August 1950; no DD Forms 214 are available. He was then inducted on 11 August 1953. Shortly thereafter, he enlisted in the Regular Army. He completed training as a cook and continued to serve until he retired.

4. A DD Form 214 issued on 4 October 1962 covers his active duty service back to the date of induction. It lists his authorized awards as the Good Conduct Medal, the Korean Service Medal, the United Nations Service Medal, the National Defense Service Medal and the Marksman Badge with Carbine Bar.

5. The applicant reenlisted on 5 October 1962. Special orders, dated 7 April 1965, show he qualified as a Sharpshooter with the M-14 rifle. From 15 June 1967 to 12 June 1968 he served as First Cook with the 919^th Engineer Company, 11^th Armored Cavalry Regiment in the Republic of Vietnam (RVN). The applicant was promoted to staff sergeant on 9 November 1967. He returned to the United States on 12 June 1968. Orders Number 5168 issued by Headquarters 9^th Infantry Division awarded him the Bronze Star Medal for meritorious achievement for the period 27 June to 18 June 1968. The applicant was discharged at the expiration of his term of service on 4 October 1968. His DD Form 214 for this period of service lists his authorized awards as the Good Conduct Medal (2^nd award), the National Defense Service Medal with Oak Leaf Cluster, the Vietnam Service Medal and the RVN Campaign Medal.

6. The applicant's DA Form 20 (Enlisted Qualification Record, item 41 (Awards) shows that during this period of service he was authorized or awarded the Vietnam Service Medal , the RVN Campaign Medal, the National Defense Service Medal with Oak Leaf Cluster and the Bronze Star Medal. Item 39 (Campaigns) indicates that he participated in three campaign periods; the Vietnam Counteroffensive Phases III, Tet and IV. Item 40 (Wounds) is blank.

7. Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

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8. Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each designated campaign listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal. A silver service star is authorized in lieu of five bronze service stars.

9. Department of the Army Pamphlet 672-3, Unit Citation and Campaign Participation Credit Register, shows that the 919^th Engineer Company was awarded the Valorous Unit Award for the period 15 January 1958 to 5 February 1958 and the RVN Gallantry Cross with Palm Unit Citation for the period 7 September 1966 to 10 August 1968.

10. The applicant reenlisted on 5 October 1968. On 22 May 1969 he was counseled about his standing on the promotion eligibility list. The counseling form (DA Form 3354-R) lists copious information, but does not include the Purple Heart among his list of awards. Orders dated 31 July 1972 awarded him the Good conduct Medal (4^th award) for the period 28 April 69 to 27 April 1972. He retired on 31 January 1973 and was transferred to the Retired Reserve in pay grade E-6. His DD Form 214 for this period of service lists his authorized awards as the Good Conduct Medal (4^th award), and the Armed Forces Expeditionary Medal. His DA Form 20 indicates the same award information.

11. Army Regulation 600-8-22 provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined. A bronze oak leaf cluster is awarded to denote the second and succeeding awards.

12. There is no available medical evidence to indicate that the applicant was ever treated for a wound sustained as the result of enemy action. There is no indication of any such wound in the reports of medical history or in the physicians' reports of his numerous physical examinations. His VA medical records were not available for review.

13. Army Regulation 635-5, Separation Documents, provides the policy for completion of DD Forms 214. The 23 January 1967 edition, as amended, indicates that all authorized awards are to be entered in block 24.

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DISCUSSION AND CONCLUSIONS:

1. There is insufficient evidence that the applicant was treated for a wound sustained as the result of enemy action to conclude that award of the Purple Heart is appropriate.

2. The applicant's award of the Bronze Star Medal is confirmed by orders in his record. This award should be shown on his final DD Form 214.

3. Several other awards have been listed on earlier DD Forms 214 or authorized and never entered on any DD Form 214; these include: the Korean Service Medal, the United Nations Service Medal, the National Defense Service Medal with Oak Leaf Cluster, the Valorous Unit Award and the RVN Gallantry Cross with Palm Unit Citation, 3 bronze service stars for wear on the Vietnam Service Medal and the Sharpshooter Badge with Rifle Bar and the Marksman Badge with Carbine Bar. Administrative relief by adding these awards to his final DD Form 214 is appropriate.

4. Records show the applicant should have discovered the error or injustice now under consideration on 31 January 1973, the date of his retirement. Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 January 1973. 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 in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___WTM_ __ALR__ __KWL__ DENY APPLICATION

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the requested by awarding the Purple Heart. 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.

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2. However, administrative relief, to add his previously authorized awards to his final DD Form 214, is available. The Army Review Board Agency, Support Division, St Louis will be requested to issue a DD Form 215 (correction to DD Form 214) to show that, in addition to the awards already listed on his 31 January 1973 DD Form 214, his authorized include the Bronze Star Medal, the Korean Service Medal, the United Nations Service Medal, the National Defense Service Medal with Oak Leaf Cluster, the Valorous Unit Award and the RVN Gallantry Cross with Palm Unit Citation, 3 bronze service stars for wear on the Vietnam Service Medal and the Sharpshooter Badge with Rifle Bar and the Marksman Badge with Carbine Bar. Administrative correction by adding these awards to his final DD Form 214 is appropriate.


                  _ Walter T. Morrison__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088651
SUFFIX
RECON
DATE BOARDED	20031204
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.