RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011421 


	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

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy 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, in effect, correction of his DD Form 214 (Report of Transfer or Discharge) to show three awards of the Bronze Star Medal (one award for service and two awards for valor) (correctly known as the Bronze Star Medal with “V” Device with Second Oak Leaf Cluster), the Air Medal, the Purple Heart, four awards of the Army Commendation Medal with “V” Device (correctly known as the Army Commendation Medal with “V” Device with Third Oak Leaf Cluster), the Silver Star, the Combat Infantryman Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Good Conduct Medal.

2.  The applicant states that his Army medals were incorrectly put on his DD Form 214 when he was discharged.  He contends that he was separated from the service on temporary records and a Soldier’s affidavit because his records were lost some time between his service in Vietnam and Texas.  He also states that he never received the Silver Star and that he was put in for the Good Conduct Medal but he never got it. 

3.  The applicant provides orders for the Silver Star and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 
16 March 1970.  The application submitted in this case is dated 3 August 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 Silver Star.  Although the applicant provided orders for the Silver Star, the Military Awards Branch of the Human Resources Command provided an official signed copy of the same orders that does not pertain to either the applicant or the Silver Star.  In the absence of a proper award authority for this decoration, the applicant may request award of the Silver Star under the provisions of Section 1130 of Title 10, United States Code.  The applicant has been notified by separate correspondence of the procedures for applying for this decoration under Section 1130 and, as a result, they will not be discussed further in this Record of Proceedings.

4.  The applicant was inducted on 15 March 1968.  He arrived in Vietnam on 
11 August 1968.  He served as a light weapons infantryman assigned to Company C, 4th Battalion, 47th Infantry of the 9th Infantry Division in Vietnam from 20 August 1968 through 13 July 1969.  On 16 March 1970, the applicant was released from active duty.  

5.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Campaign Medal with Device 1960 as authorized awards.  His DD Form 214 shows that he was separated from the service on temporary records and a Soldier’s affidavit.

6.  Headquarters, 9th Infantry Division Special Orders Number 308, dated 
3 November 1968, show the applicant received the Combat Infantryman Badge.  

7.  Headquarters, 9th Infantry Division General Orders Number 380, dated 
11 January 1969, show the applicant received the Army Commendation Medal with “V” Device for heroism on 13 December 1968 in Vietnam.

8.  Headquarters, 9th Infantry Division General Orders Number 1241, dated 
4 February 1969, show the applicant received the Air Medal.

9.  Headquarters, 9th Infantry Division General Orders Number 2054, dated 
20 February 1969, show the applicant received the Army Commendation Medal with “V” Device for heroism on 2 January 1969 in Vietnam.

10.  Headquarters, 9th Infantry Division General Orders Number 3975, dated 
4 April 1969, show the applicant received the Bronze Star Medal with “V” Device for heroism on 16 February 1969 in Vietnam.

11.  Headquarters, 9th Infantry Division General Orders Number 6477, dated 
6 June 1969, show the applicant received the Bronze Star Medal with “V” Device with First Oak Leaf Cluster for heroism on 7 May 1969.

12.  There are no orders for the Army Commendation Medal with Second Oak Leaf Cluster in the available records.  However, Headquarters, 9th Infantry Division General Orders Number 6523, dated 8 June 1969, show the applicant received the Army Commendation Medal with Third Oak Leaf Cluster with “V” Device for heroism on 24 May 1969 in Vietnam.

13.  Headquarters, 9th Infantry Division General Orders Number 7262, dated 
23 June 1969, show the applicant received the Bronze Star Medal with Second Oak Leaf Cluster for meritorious service during the period August 1968 to June 1969.

14.  There are no orders for the Purple Heart in the applicant’s service personnel records.  However, a Western Union telegram, dated 6 March 1969, shows the applicant was slightly wounded in action on 4 March 1969 in Vietnam and sustained multiple fragment wounds to both hands.  Also, item 40 (Wounds) on his DA Form 20 (Enlisted Qualification Record) shows that he was wounded on 
4 March 1969. 

15.  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 the applicant's unit is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 59, dated 1969.

16.  There are no orders for the Good Conduct Medal in the applicant’s service personnel records.  Records show the applicant had 2 days of lost time for being absent without leave from 27-28 December 1969 and he received nonjudicial punishment on 10 February 1970 for disobeying a lawful order.    

17.  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.

18.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must 
have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in General Orders.


DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant received the Bronze Star Medal with “V” Device with Second Oak Leaf Cluster, the Air Medal, the Army Commendation Medal with “V” Device with Third Oak Leaf Cluster, and the Combat Infantryman Badge.  
2.  The Western Union telegram, dated 7 March 1969, which shows the applicant was slightly wounded in action on 4 March 1969 in Vietnam is accepted as sufficient evidence on which to base award of the Purple Heart in this case.  

3.  The applicant's unit received the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.

4.  There are no orders for the Good Conduct Medal in the available records.  The applicant's military records show he had 2 days of lost time due to AWOL in December 1969 and he received nonjudicial punishment in February 1970.  Therefore, it appears the applicant did not meet the eligibility criteria for award of the Good Conduct Medal.  

5.  Records show the applicant should have discovered the alleged errors now under consideration on 16 March 1970; therefore, the time for the applicant to file a request for correction of any error expired on 15 March 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

JI_____  ___SP___  ___QS___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  awarding him the Purple Heart for wounds received in action on 
4 March 1969 in Vietnam; and 

b.  amending his DD Form 214 to add the Purple Heart, the Bronze Star Medal with “V” Device with Second Oak Leaf Cluster, the Air Medal, the Army Commendation Medal with “V” Device with Third Oak Leaf Cluster, the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation,

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his DD Form 214 to show the Good Conduct Medal.  



___John Infante_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011421
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.