RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012934 


	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

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell  

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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 with First Oak Leaf Cluster and the Meritorious Service Medal with First Oak Leaf Cluster.

2.  The applicant states that an oversight prevented the awards from being placed in his records.

3.  The applicant provides Headquarters, 9th Infantry Division Orders Number 6410, dated 6 August 1968; a Purple Heart Certificate; Recommendation for Award of the Silver Star; Headquarters, 3d Infantry Division Orders Number 38-2, dated 14 March 1978; a Headquarters, US Army Readiness and Mobilization Region III, First US Army letter, dated 21 May 1981; and a Meritorious Service Medal Certificate, dated 5 May 1981; in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1981, the date of his separation for retirement.  The application submitted in this case is dated 29 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 records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the effective date 6 March 1963. This form shows that the applicant completed 4 years of net service during this period of enlistment as a member of the US Marine Corps.

4.  The applicant's records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the effective date 31 March 1981.  This form shows that the applicant entered active duty on 10 January 1967 and completed 14 years, 10 months, and 21 days of net service during this period of enlistment. 

5.  The applicant's DD Form 214 with the effective date 31 March 1981 does not show that he was awarded the Purple Heart with First Oak Leaf Cluster or the Meritorious Service Medal with First Oak Leaf Cluster.

6.  The applicant's name is shown on the Vietnam Casualty Roster.  This roster shows the applicant sustained injuries as a result of hostile action on 4 August 1968 and on 12 August 1968.

7.  Headquarters, 9th Infantry Division Orders Number 6410, dated 6 August 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 4 August 1968.

8.  There are no general orders in the available records which show the applicant was awarded the Purple Heart with First Oak Leaf Cluster for wounds sustained in action on 12 August 1968.

9.  The applicant's records contain a Certificate for Award of the Purple Heart.  This certificate shows the applicant was awarded the Purple Heart with First Oak Leaf Cluster for wounds received in action in the Republic of Vietnam on 
12 August 1968.  This certificate was authenticated by the Secretary of the Army.

10.  The applicant's records contain the recommendation and subsequent citation for award of the Silver Star.  These documents show that, on 12 August 1968, the applicant sustained wounds to both of his legs and in spite of his crippling wounds, he continued to lead his platoon.

11.  Headquarters, 3d Infantry Division Orders Number 38-2, dated 14 March 1978, awarded the applicant the Meritorious Service Medal for meritorious service during the period 7 May 1975 through 16 March 1978.

12.  The applicant's records contain a Certificate for Award of the Meritorious Service Medal, dated 5 May 1981 for period March 1971 through March 1981 for outstanding meritorious service.  This certificate was authenticated by the Secretary of the Army and a major general in command of the US Army.

13.  The applicant provided a Headquarters, US Army Readiness and Mobilization Region III, First US Army letter, dated 21 May 1981.  This letter was addressed to the applicant and informed him that the Meritorious Service Medal Certificate was enclosed and that copies of the Citation and Permanent Orders were forwarded to the US Army Administration Center, St. Louis, Missouri for inclusion in his official military personnel file.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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 also provides that there are no time limitations for requests for award of the Purple Heart.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.  The regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.  

16.  Army Regulation 600-8-22 states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart and the Meritorious Service Medal.

17.  Review of the applicant's records indicates entitlement to an additional award that is not shown on his DD Form 214.

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to award of the Purple Heart with First Oak leaf Cluster and the Meritorious Service Medal with First Oak Leaf Cluster was carefully considered and determined to have merit.




2.  The applicant's record clearly shows that he sustained injuries as a result of hostile action on 4 August 1968 and again on 12 August 1968.  As a result, the applicant is entitled to correction of his records to show award of the Purple Heart with First Oak Leaf Cluster.

3.  Orders show, that on 14 March 1978, the applicant was awarded the Meritorious Service Medal for the period 7 May 1975 through 16 March 1978 and that upon his retirement in March 1981, he was awarded a second Meritorious Service Medal for the period from March 1971 through March 1981.  Therefore, the applicant is entitled to correction of his record to show award of the Meritorious Service Medal with First Oak Leaf Cluster.  

4.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 March 1981, the date of his separation from active duty for retirement purposes; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 March 1984.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact there is no statute of limitations on requests for award of the Purple Heart.

BOARD VOTE:

_TMR___  _RMN_ __  _JTM___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 showing the applicant was awarded the Purple Heart with First Oak Leaf Cluster for wounds sustained in the Republic of Vietnam, the Meritorious Service Medal with First Oak Leaf Cluster, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




__John T. Meixell___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.