RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010930 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

Member

Ms. Qawiy A. Sabree

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 correction of his records to show award of the Purple Heart and the Air Medal. 

2.  The applicant states, in effect, that he did not receive the Purple Heart for his injuries while serving in Vietnam.  He further states that after the incident he was transferred to the 71st Aviation Company.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 20 December 1971. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 20 December 1971.  The application submitted in this case is dated 28 July 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 requested correction of his records to show award of the Air Medal.  There are no orders or other evidence authorizing award of this decoration to the applicant.  In the absence of a proper award authority for this decoration, the applicant may request award of the Air Medal under the provisions of Section 1130, Title 10, United States Code.  He has been notified by separate correspondence of the procedures for applying for the decoration under section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.

4.  The applicant was inducted into the Army on 3 June 1970 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 76Y (Supply Specialist).  



5.  The applicant arrived in Vietnam and was assigned to D Company, 3rd Battalion, 21st Infantry, 196th Brigade on or about 28 January 1971.  He was transferred to the 71st Aviation Company on or about 13 April 1971.  The applicant departed Vietnam on or about 24 June 1971 after being credited with participating in one campaign.

6.  He was authorized 14 days of ordinary leave in the United States.  On 7 July 1971, the applicant apparently was attached to Fort Jackson, South Carolina where a temporary record was constructed.  Contrary to information contained in the applicant's original record, the temporary record indicates the applicant completed infantry advanced individual training at Fort Lee in 1970, was awarded specialty 11B (infantryman), and performed duties as an infantryman with the 71st Aviation Company in Vietnam.

7.  In December 1971, the applicant requested a hardship discharge based on his mother's health and his financial situation.  The request was approved and on 
20 December 1971 the applicant was honorably released from active duty after completing 1 year, 6 months, and 18 days of creditable active service with no time lost.  

8.  The applicant's DD Form 214 for the period ending 20 December 1971 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device 1960.

9.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.  

10.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded, and item 41 (Awards and Decorations) does not show award of the Purple Heart.  

11.  The applicant's Army Medical Treatment Records are unavailable.  

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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that, at the time of the applicant’s assignment to the 3rd Battalion, 21st Infantry, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 March 1971 through 
9 October 1971 based on Headquarters, Department of the Army General Orders Number 6, dated 1974.

14.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment to the 71st Aviation Company it was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 April 1971 through 30 June 1971 by Department of the Army General Orders Number 6, dated 1974.

15.  Department of the Army Pamphlet 672-3 states that not more than one Republic of Vietnam Gallantry Cross with Palm Unit Citation will be worn by any individual. Although multiple awards of this citation badge may not be worn, official military personnel and historical records will indicate all awards received.

16.  Army Regulation 600-8-22 provides, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There is no evidence in the available records and the applicant has not provided evidence that shows he was injured as a result of hostile action.  

2.  Lacking any corroborating evidence of record showing the applicant was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

3.  The applicant was assigned to two units during a period of time these units were each awarded one Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Although he may wear only one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation his DD Form 214 should be amended to add both these unit awards.

4.  The applicant met the eligibility criteria for award of one bronze service star to be worn on his the Republic of Vietnam Service Medal.  This award should be added to his DD Form 214.  

5.  Evidence shows that the applicant’s records contain an 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 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 December 1971.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 December 1974.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MDM__  ___JTM     __QAS__  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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

3.  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 two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and one bronze service star to be worn on his already awarded Vietnam Service Medal.  




___ Mark D. Manning       _
          CHAIRPERSON




INDEX

CASE ID
AR20060010930
SUFFIX

RECON

DATE BOARDED
21 FEBRUARY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
107.0015.0000
2.
107.0094.0000
3.

4.

5.

6.