RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 December 2003
         DOCKET NUMBER: AR2003089433

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. James E. Anderholm		Member
Ms. Yolanda Maldonado		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, in effect, that he be awarded the Purple Heart (PH) and all other combat service medals to which he is entitled.

2. The applicant states, in effect, that he is entitled to the PH for a lower back injury he received while serving in the Republic of Vietnam (RVN). He also claims that he did not receive all the combat service medals to which he was entitled based on his service in the RVN.

3. The applicant provides a copy of his 9 April 1971 separation document
(DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice that occurred during his active duty service, which ended on 9 April 1971. The application submitted in this case is dated 10 April 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’s military record shows that he was inducted into the Army of the United States and entered active duty on 10 April 1969. He was trained and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty was specialist four (SP4).

4. The applicant’s Enlisted Qualification Record (DA Form 20) shows that the applicant served in the RVN from 8 September 1969 through 8 September 1970. It also shows that while serving in the RVN, he was assigned to Company B,
1st Battalion, 5th Cavalry Regiment, 1st Cavalry Division, performing infantry duties in MOS 11B.

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5. Item 40 (Wounds) of the applicant’s DA Form 20 is blank, indicating that he was never wounded or injured as a result of enemy action. Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure: National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); Air Medal (AM); RVN Campaign Medal with 60 Device; Sharpshooter Qualification Badge with Rifle Bar (M-16); and Marksman Qualification Badge with Rifle Bar (M-14). Item 48 (Date of Last Audit) confirms that he last reviewed and verified the information contained on his DA Form 20 on 14 October 1970.

6. The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of General Orders Number 15130, dated 15 September 1970, issued by Headquarters, 1st Cavalry Division, RVN. These orders awarded the applicant the Bronze Star Medal (BSM), for meritorious service for the period September 1969 through September 1970. The MPRJ contains no orders or other documents that indicate he was ever recommended for or awarded the PH.

7. A Report of Medical Examination (SF 88), dated 17 March 1971, shows that the applicant completed his separation medical examination on that date. This document contains no indication that the applicant was wounded or injured as a result of enemy action and documents no lower back injury. Item 73 (Notes) where a remark regarding a combat related injury or other disqualifying medical conditions could be expected to be entered contains only the following statement made by the applicant: “I am in good health.” The applicant’s physical category was listed as “A”, and he was cleared for separation by competent medical authority. No other medical treatment records are on file in the MPRJ.

8. On 9 April 1971, the applicant was honorably released from active duty, by reason of expiration of term of service (ETS). The DD Form 214 issued to him on that date shows he completed a total of 2 years of active military service and held the rank of SP4 at the time. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following awards he earned while on active duty: NDSM; VSM with 3 bronze service stars; RVN Campaign Medal; CIB; AM; Sharpshooter Qualification Badge with Rifle Bar (M-16); and Marksman Qualification Badge with Rifle Bar (M-14).

9. In connection with the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, which contains the names of those soldiers wounded or injured in action in the RVN. The applicant’s name was not included in this DA list of soldiers who were reported as RVN battle casualties.

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10. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH. It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action. The wound or injury for which the PH is being awarded must have required treatment by a medical officer, this treatment must be supported by medical treatment records that were made a matter of official record.

11. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Battalion, 5th Cavalry) earned the Valorous Unit Award, RVN Gallantry Cross Unit Citation with Palm, and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1. By regulation, in order to award the PH it is necessary to establish that a soldier was wounded or injured in action. There are no medical treatment records on file and the applicant has failed to provide any evidence to show he was ever treated for a lower back injury while serving in the RVN, or that he was ever wounded or injured in action.

2. Further, the only medical documentation on file is a SF 88 that documents the applicant’s separation medical examination. This document confirms that he was in good health on that date. It also provides no indication that he was ever wounded or injured in action. Finally, his name is not included in the official
DA Vietnam Casualty Roster. Therefore, there is an insufficient evidentiary basis to satisfy the regulation burden of proof necessary to support award of the PH in this case.

3. The evidence of record shows that at the latest, the applicant should have discovered the PH error or injustice now under consideration on the date of his separation, 9 April 1971; therefore, the time for him to file a request for correction of his record regarding this issue expired on 8 April 1974. However, he did not file within the 3-year statute of limitations and he has failed to provide a compelling explanation or evidence to show that it would be in the interest of justice to excuse his failure to file in regard to this issue.

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4. The evidence of record does include general orders that awarded the applicant the Bronze Star Medal, for his meritorious service for the period September 1969 through September 1970. It also contains information that confirms that based on his service in the RVN, the applicant is also entitled to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

5. The awards listed in the preceding paragraph were omitted from the applicant’s record due to administrative error. Correction of this error does not require action by the Board. Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), 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

__RA__ ___YM_ __RO_____ DENY APPLICATION

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

2. The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by adding the Bronze Star Medal, Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his record; and by providing him a corrected separation document that includes these earned awards.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089433
SUFFIX
RECON
DATE BOARDED	2003/12/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1971/04/09
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	ETS
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2. 46	107.0000
3.
4.
5.
6.