RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:  1 March 2007	  
	DOCKET NUMBER:  AR20060010705 


	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. Gerard W. Schwartz

Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

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



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Purple Heart.

2.  The applicant states, in effect, he believes the Purple Heart should be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He received the award for shrapnel wound on his left forearm.  On 11 August 1971, he was hit with shrapnel when a Soldier in front of him stepped on a buried grenade.  He did not know how to file a request to have it added to his DD Form 214.  He did receive the medal by mail after his discharge.   

3.  The applicant provides a copy of his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 October 1971, the date of his release from active duty.  The application submitted in this case is dated 19 June 2006.

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 limitations 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 he was inducted into the United States Army, in pay grade E-1, on 25 March 1970.  He completed basic and advanced individual training and was assigned military occupational specialty 11B, light weapons infantryman.  

4.  The applicant's records contain General Orders Number 5684, dated 9 November 1970, that shows he was awarded the Army Commendation Medal for meritorious achievement from 1 October 1970 to 8 November 1970.  His records also contain General Orders Number 06026, dated 29 May 1971, that shows he was awarded the Army Commendation Medal for meritorious achievement from 1 November 1970 to 30 April 1971 and General Orders Number 10102, dated 11 September 1971, awarding him the Army Commendation Medal for meritorious service from 1 October 1970 to 31 August 1971.
5.  His records show that he served in the Republic of Vietnam from 19 August 1970 through 11 October 1971, with Companies C and D of the 3rd Battalion, 12th Infantry, and Company B, 1st Battalion, 20th Infantry, 23rd Infantry Division, during two campaigns.

6.  He was released from active duty, in pay grade E-4, on 11 October 1971, and transferred to the United States Army Reserve (USAR).

7.  Entries on the applicant's DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) list the following awards:  the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Army Commendation Medal, the Vietnam Campaign Medal with Device 60, the Air Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60).  The Purple Heart and his two bronze service stars are not listed.  

8.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that show he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 (Enlisted Qualification Record) does not show any entry in item 40 (Wounds) or list the Purple Heart in item 41 (Awards and Decorations).  Item 41 shows he was also awarded a second and third award of the Army Commendation Medal and these awards are not listed on his DD Form 214.

9.  He was discharged from the USAR for Expiration of Term of Service on 
1 March 1976.

10.  On 24 January 1985, the applicant submitted a request for award of the Purple Heart, stating he was wounded in action in Vietnam in August 1971, while serving in the 1st Battalion, 20th Infantry.  A Search Report, dated 1 July 1985, stated a search of morning reports for Company B, 1st Battalion, 20th Infantry Regiment from 1 August 1971 to 30 September 1971, provided no wounded in action entries for the applicant.

11.  The Vietnam Casualty Roster does not show the applicant’s name and there are no medical treatment records available to show how or when he might have been wounded or injured.  This roster was also searched for the name of the Soldier the applicant alleges stepped on the grenade and caused him to be wounded.  This roster does not show that a Solider by that last name was killed or wounded in 1971.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  The regulation also states that the Purple Heart is not governed by the statute of limitations.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

14.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment with the 3rd Battalion, 12th Infantry, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, by Headquarters, Department of the Army General Orders Number 52, dated 1971. 

15.  Army Regulation 600-8-22 provides the Army policy on awards.  It provides, in pertinent part, that bronze service stars are authorized for wear on the Vietnam Service Medal to denote a Soldier's campaign participation.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  Careful consideration was given to the statement submitted by the applicant.  However, given the lack of any corroborating evidence of record or evidence from other independent sources, the statement alone is not sufficient to meet the regulatory burden of proof necessary to support that the applicant was wounded or treated for wounds as a result of hostile action and entitled to award of the Purple Heart.

2.   The evidence of record confirms that the applicant is entitled to the Army Commendation Medal (3rd Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed on his Vietnam Service Medal.  These awards are not shown on the applicant's DD Form 214.

3.  Evidence shows that the applicant’s records contain administrative error which 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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 October 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 October 1974.  The applicant did not file within the 3-year statute of limitations.  However, since award of the Purple Heart is not governed by a statute of limitation, it is appropriate to waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JCR___  __JRH__  __TMR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 to show award of the Purple Heart.

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 to show award of the Army Commendation Medal (3rd Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal, and by providing him a correction to his separation document that includes these awards.




      _____Thomas M. Ray______
                CHAIRPERSON




INDEX

CASE ID
AR20060010705
SUFFIX

RECON

DATE BOARDED
2007/03/01
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY w/Note
REVIEW AUTHORITY

ISSUES         1.
107.00
2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20060010705


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508