RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060011439 


	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.


	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:

The applicant requests, in effect, that his separation document (DD Form 214) be corrected to show the Purple Heart (PH) 1st Oak Leaf Cluster (OLC), to denote his two awards of the PH.  

2.  The applicant states, in effect, that his separation document (DD Form 214) should be corrected to reflect he received two PHs, the first in 1966 and the second in 1969.  He also requests his DD Form 214 show he was awarded the Bronze Star Medal (BSM) and any other awards to which he may be entitled.

3.  The applicant provides the following documents in support of his application:  BSM Certificate and Citation; Headquarters, XXIV Corps, General Orders Number 1300, dated 18 August 1969; PH Certificate; Headquarters, 1st Infantry Brigade, 5th Infantry Division, General Orders Number 117, dated 24 June 1969; DD Form 214; Honorable Discharge Certificate; and North Carolina Department of Administration Letter, dated 4 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 6 July 1969.  The application submitted in this case is dated 2 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’s record shows he enlisted and entered active duty on 26 July 1966.  He was trained, awarded and served in military occupational specialties (MOSs) 11C (Infantry Indirect Fire Crewman) and 11B (Light Weapons Infantryman).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 31 (Foreign Service), that he completed two tours in the Republic of Vietnam (RVN). The first tour was from 19 December 1966 to 17 December 1967 and the second was from 25 July 1968 to 18 July 1969.

5.  Item 38 (Record of Assignments) of the DA Form 20 shows that during his first RVN tour, he was assigned to the 2nd Battalion, 27th Infantry Regiment and during his second tour, he was assigned to Company B, 1st Battalion, 61st Infantry Regiment.  Item 40 (Wounds) contains a single entry showing he received multiple fragment wounds to his left clavicle, the back of his skull, and right side of his chest on 20 June 1969.   

6.  Item 41 of the applicant's DA Form 20 shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); PH; Army Good Conduct Medal (AGCM); Army Commendation Medal (ARCOM); Combat Infantryman Badge (CIB); RVN Campaign Medal (RVNCM); and 2 Overseas Service Bars.  

7.  The applicant's Military Personnel Records Jacket (MPRJ) contains no additional orders, or other documents that indicate he was ever recommended for, or awarded the PH for being wounded in action in 1966.  The MPRJ is also void of any medical treatment records indicating he was ever treated for a combat related wound in 1966.  

8.  The applicant's MPRJ contains Headquarters, XXIV Corps, General Orders Number 1300, dated 18 August 1969, which announced the applicant’s award of the BSM for meritorious service in connection with military operations against a hostile force during the period July 1968 through July 1969.  It also contains Headquarters, 5th Infantry Mechanized and Fort Carson Special Orders Number 177, dated 25 Jun 1968, which shows the applicant qualified “Expert” with the 
81 millimeter mortar.

9.  On 6 July 1969, the applicant was honorably released from active duty after completing a total of 2 years, 11 months, and 11 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  NDSM; VSM, RVNCM, CIB, AGCM, ARCOM, PH, 3 Overseas Service Bars, Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar, and the Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.  A second award of the PH, or PH (First Oak Leaf Cluster), is not included in the list of awards in Item 24, and the applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or discharged) on the date of his separation.  


10.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty List.  This list contains only one entry pertaining to the applicant, which shows he was wounded in action on 20 June 1966.  There is no entry indicating he was wounded in action in 1966. 

11.  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 the PH is awarded to any member who has been wounded or killed in action. A wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  An oak leaf cluster will be used to denote second or subsequent awards of this medal.  

12.  The awards regulation stipulates that in order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  

13.  Paragraph 2-13 of the awards regulation contains guidance on award of the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  A silver service star is used in lieu of five bronze service stars to denote participation in five campaigns.  

14.  Table B-1 of the awards regulation contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, campaign credit was granted for the Vietnam Counteroffensive Phase II, Vietnam Counteroffensive Phase III, Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and the Vietnam Summer-Fall 1969 campaigns.  

15.  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 two tours in the RVN, the applicant’s units received the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to a second award of the PH and the supporting documents he provided were carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound, for which the award is being made, was received as a direct result of, or was caused by enemy action, and that the wound was treated by military medical personnel.   

2.  Item 40 of the applicant's DA Form 20 contains a single entry, which confirms he was wounded in action in the RVN on 20 June 1969.  There is no entry pertaining to a wound received in 1966.  His MPRJ is void of any orders, documents, or medical treatment records showing he was wounded or injured in action in 1966, or that he treated for a combat-related wound at anytime prior to 1969.  It also is void of any indication that he was recommended for or awarded the PH by proper authority based on a combat-related wound or injury he claims to have received in 1966.  

3.  Further, his record and separation document confirms he was awarded the PH for being wounded in action in 1969, and a second award of the PH is not included in the list of awards contained in Item 41 of his DA Form 20, or in Item 24 of his DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  Further, there is no entry pertaining to his being wounded in action in the RVN in 1966 on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

4.  The veracity of the applicant's claim of entitlement to a second award of the PH based on being wounded in action in 1966 is not in question.  However, absent any evidence to corroborate that he was wounded as a result of enemy action, and that he was treated for a combat related wound by military medical personnel while serving in the RVN in 1966, the regulatory burden of proof necessary to support a second award of the PH has not been satisfied in this case.  As a result there is an insufficient evidentiary basis to support granting the requested relief.  


5.  Records show the applicant should have discovered the alleged error or injustice related to a second award of the PH now under consideration on 6 July 1969, the date of his separation.  Therefore, the time for him to file a request for correction of any error or injustice expired on 5 July 1972.  However, he failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

6.  The applicant's record does show his entitlement to the Bronze Star Medal, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Mortar Bar, and 1 silver service star and 1 bronze service star with his VSM.  The omission of these awards is an administrative matter that does not require 
Board action.  Therefore, the Case Management Support Division (CMSD), 
St. Louis, Missouri, will correct his record as outlined in paragraph 3 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LDS _  __JTM __  __RSV __  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 by showing his entitlement to the Bronze Star Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Mortar Bar, and 
1 silver service star and 1 bronze service star with his Vietnam Service Medal; and by providing him a correction to his separation document that reflects these awards.




_____Linda D. Simmons_____
          CHAIRPERSON


INDEX

CASE ID
AR20060011439
SUFFIX

RECON
NO
DATE BOARDED
2007/03/22
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1969/07/06
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Overseas Returnee
BOARD DECISION
DENY with Note
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015
2.

3.

4.

5.

6.