RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 18 November 2003
         DOCKET NUMBER: AR2003089488

         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. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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 the Purple Heart (PH) and Silver Star (SS) be added to his record.

2. The applicant states, in effect, that he was not awarded PHs he was entitled to based on the events for which he was awarded the SS and Distinguished Flying Cross (DFC).

3. The applicant provides copies of his SS and DFC citations is support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of his record to show he earned the PH and SS during his tenure on active duty, which ended on 21 November 1968. The application submitted in this case is dated 20 MARCH 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 records show that he was inducted into the Army of the United States and entered active duty on 22 November 1966. He was trained and served in military occupational specialty (MOS) 67N (Helicopter Repairer) and the highest rank he attained while serving on active duty was specialist five (SP5).

4. The applicant’s Enlisted Qualification Record (DA Form 20) confirms that he served in the Republic of Vietnam (RVN) from 25 June 1967 through 22 June 1968. Item 40 (Wounds) is blank and contains no entry indicating that the applicant was ever wounded or injured in action. Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the following awards: National Defense Service Medal (NDSM); Army Commendation Medal (ARCOM); Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM); Aircraft Crewman Badge; Army Good Conduct Medal (AGCM) 1st Award; and the DFC.

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5. Item 47 (Signature of Individual) and Item 48 (Date of Audit) of the applicant’s DA Form 20 confirms that the applicant signed this form on the date it was prepared, 29 November 1966, and that he last audited and verified the information contained therein on 23 July 1968.

6. The separation document (DD Form 214) issued to the applicant on the date of his separation, 21 November 1968, shows that he earned the following awards during his tenure on active duty: NDSM; VSM with 2 bronze service stars; RVNCM; Aircraft Crewman Badge; ARCOM; and DFC. The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged).

7. The applicant’s Military Personnel Records Jacket (MPRJ) includes a copy of a correction to the applicant’s DD Form 214 (DD Form 215), published on
29 August 1977. This document amended Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s 21 November 1968 DD Form 214 by deleting the VSM with 2 bronze service stars and the RVNCM; and adding the Air Medal
2nd Award, Army Good Conduct Medal, VSM with 3 bronze service stars, and RVNCM with 1960 Device.

8. The MPRJ also contains a copy of a letter from the Chief, Military Awards Branch, U.S. Army Military Personnel Center General (MILPERSCEN), dated
22 December 1977. This letter confirms that based on the applicant’s letter to a major general (MG) then still on active duty, Department of the Army (DA) general orders (GO) were published awarding him the SS. A copy of
GO Number 24, dated 20 December 1977, which awarded the applicant
the SS for gallantry in action on 4 February 1968 is also on file in the MPRJ. However, none of the documents, to include award citations and orders for
the SS and DFC, on file contain any indication that the applicant was wounded or injured in action while he was involved in the combat actions for which he received these awards.

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 official DA list of RVN casualties.

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10. Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards policy. Paragraph 2-8 contains guidance on awarding the Purple Heart. It states, in pertinent part, that the PH is authorized to members who are wounded in action. It further defines a wound as an injury to any part of the body from an outside force or agent sustained in action. It also stipulates that the wound for which a PH is being awarded must have required treatment by a medical officer, and the records of medical treatment for the wound or injury for which the PH is being awarded must have been made a matter of official record.

11. Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record and independent evidence provided by the applicant fails to support the applicant’s claim of entitlement to the PH. In order to support the award of the PH, the regulatory burden of proof requires that there be evidence to show that the soldier was wounded or injured in action, that the wound for which the award is being made required treatment by military medical personnel, and this treatment must have been made a matter of official record.

2. The evidence of record gives no indication that the applicant was wounded or injured as a result of enemy action. The supporting documentation on file that is the basis for the applicant receiving the SS and DFC contains no indication that the applicant was wounded or injured in action during any of the actions for which he received these awards. The evidence further confirms that the applicant’s name is not included in the list of RVN casualties contained on the official
DA Vietnam Casualty Roster.

3. The evidence of record confirms that the applicant was awarded the
SS for gallantry in action on 4 February 1968, while he was serving as a specialist four (SP4) in the RVN. Further, based on his qualifying serving in the RVN, he is also entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation. As a result, it would be appropriate to take the necessary administrative action to add these awards to his record at this time.

4. Records show that at the latest, the applicant should have discovered the PH error or injustice now under consideration on the date of his separation,
21 November 1968; therefore, the time for him to file a request for correction of his record regarding this issue expired on 21 November 1971. 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 this case.

5. However, the evidence does show that the applicant’s record contains an administrative error that does not require action by the Board. Therefore, administrative correction of his record 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

_MM___ __JS___ __BE__ 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 application within the 3-year statute of limitations prescribed by law.

2. The Board determined that administrative errors in the record of the individual should be corrected. Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the individual concerned to show he was awarded the Silver Star and that he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and by issuing him a corrected separation document that includes these awards.




                  John N. Slone
         CHAIRPERSON

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INDEX

CASE ID	AR2003089488
SUFFIX
RECON
DATE BOARDED	2003/11/18
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1968/11/21
DISCHARGE AUTHORITY	AR 635-200 Chp 2
DISCHARGE REASON
BOARD DECISION	deny
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.