RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014190 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 military records to show that he was awarded a Purple Heart for injuries sustained in the Republic of Vietnam. 

2.  The applicant states, in effect, that he suffered a hearing loss as a result of being in combat in the Republic of Vietnam.  He further states that bilateral hearing loss and tinnitus required a proper medical diagnosis which was not performed prior to his separation from the United States Army.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) rating decision dated 15 January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 May 1969, the date he was released from active duty.  The application submitted in this case is dated 27 September 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.  On 15 July 1966, the applicant enlisted in the Regular Army for 2 years.  Upon completion of his initial training, he was sent to the Armored Officer Candidate School, Fort Knox, Kentucky.

4.  On 23 May 1967, the applicant was discharged for the purpose of accepting a commission.  

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), lists his awards as the National Defense Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

6.  On 24 May 1967, the applicant was appointed as a second lieutenant in the United States Army Reserve and concurrently ordered to active duty.  

7.  On 10 May 1968, the applicant was assigned for duty as a platoon leader with Troop B, 2nd Squadron,17th Cavalry Regiment, 101st Airborne Division, in the Republic of Vietnam.  

8.  On 11 August 1968, the applicant was reassigned to the United States Military Assistance Command, Vietnam, for duty as an assistant advisor on the Mobile Advisory Team.

9.  On 5 May 1969, the applicant was returned to the United States and subsequently released from active duty on 7 May 1969.  He had attained the rank of first lieutenant and had completed 2 years, 9 months and 23 days of creditable active duty.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), lists his awards as the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Parachutist Badge, and the Combat Infantryman Badge.  It does not show the Purple Heart.

11.  The applicant's name does not appear on the Vietnam Casualty Roster.

12.  The VA rating decision, dated 15 January 2004, indicates that the VA granted the applicant a service connected disability for a bilateral hearing loss rated at ten percent.   The VA concluded in their decision that the applicant's hearing loss was most likely due to exposure to canon fire and explosions from enemy fire in the Republic of Vietnam.

13.  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 by a medical officer, and the medical treatment must have been made a matter of official record.  

14.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

15.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following four campaigns: the Vietnam Counteroffensive, Phase IV, the Vietnam Counteroffensive, Phase V, the Vietnam Counteroffensive, Phase VI, and the TET Counteroffensive, 1969.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 2nd Squadron, 17th Cavalry Regiment, during the time of the applicant's assignment, was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  The VA based their rating decision on a belief that the applicant's hearing loss was due to his exposure to canon fire and explosions from enemy fire during the applicant's duty in the Republic of Vietnam.    

2.  There is no available evidence that shows the applicant was wounded or injured as a result of hostile action. Therefore, the applicant's request should not be granted.

3.  Records show that the applicant participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of four bronze service stars to be affixed to his Vietnam Service Medal.  

4.  General Orders show that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his records to show this foreign unit award. 

5.  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 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 7 May 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
6 May 1972.  The applicant did not 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJF __  __EM ___  __CLG ______  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 concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and four bronze service stars to be affixed to his Vietnam Service Medal.





__     Curtis L. Greenway_______
          CHAIRPERSON


INDEX

CASE ID
AR20060014190
SUFFIX

RECON
 
DATE BOARDED
20070412 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.