RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20060015599 


	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. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Michael J. Flynn

Member

Mr. Jeffrey C. Redmann

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, that his records be corrected to update his awards and specifically show award of the Purple Heart and the Air Medal.

2.  The applicant states, in effect, that he received the Purple Heart for being wounded while serving in Vietnam and his service medical records show treatment for this wound.  He states he received the Air Medal during the same period as when he received the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a statement submitted to the Department of Veterans Affairs (VA) in concert with a VA application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 July 1971, the date of his release from active duty.  The application submitted in this case is dated 23 October 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.  Army Regulation 15-185 governs the operations of the ABCMR.  Paragraph  2-5 of this regulation states that the ABCMR will not consider an application until an applicant has exhausted all administrative remedies to correct the alleged error or injustice.

4.  The applicant has not exhausted all administrative remedies in relationship to award of the Air Medal.  Notification of the procedures for submission of a request under Section 1130 of Title 10, United States Code has been sent to the applicant in a separate letter.  Since the applicant still has administrative relief available the issue of award of the Air Medal will not be further addressed.

5.  The applicant's service medical records are believed to be on indefinite loan to the VA and as such are not available for review by the Board.
6.  The records show the applicant entered active duty on 22 July 1969, completed training, and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in Vietnam from 5 January 1970 through 29 November 1970 with Company C, 1st Battalion, 22nd Infantry Regiment.  

7.  The record contains orders awarding the applicant the Good Conduct Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars.

8.  Item 40 (Wounds) on the DA Form 20 is blank.  It lists his awards as the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  

9.  The applicant was honorably released from active duty on 21 July 1971 after having served 2 years.  His DD Form 214 lists his awards as the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with "1960" Device, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars.

10.  A review of the Vietnam Casualty List failed to locate a reference to the applicant.

11.  In his personal statement the applicant describes the incident that resulted in his wound.  He indicates his unit was firing ammunition to use it up due to rust problems.  In the process of this non-combat firing, his machinegun jammed.  While attempting to remove the jam the cartridge discharged injuring his right hand. 

12.  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 unit, to which the applicant was assigned, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 15 December 1969 to 10 October 1970 by Department of the Army General Order Number 52, dated 1971.

13.  Army Regulation 600-8-22 (Military Awards, paragraph 2-8 provides for award of the Purple Heart to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force.  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.  Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each designated campaign period listed in Appendix B of the regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal.  The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Based on the applicant's dates of service in Vietnam, Appendix B indicates he served during the following three campaign periods:  the Vietnam Winter-Spring 1970; 1 November 1969 - 30 April 1970; the DA Sanctuary Counteroffensive 1 May 1970 - 30 June 1970; and the Counteroffensive Phase VII, 1 July 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records are not available to determine if the applicant did or did not receive treatment for a wound and the applicant's service personnel records contain no reverence to any wounds received.  

2.  Further, by the applicant's own statement the injury was an accidental injury, not a combat-related wound.

3.  The applicant served during three campaign periods and is authorized award of an additional (third) bronze service star for wear on his Vietnam Service Medal.

4.  In addition to the awards listed on his DD Form 214 the applicant is also authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 21 July 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
20 July 1974.  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   __cd____  __JCR __  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 to show that, in addition to the awards listed on the DD Form 214, the applicant is also authorized award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and to wear three bronze service stars on his Vietnam Service Medal.




__      Carmen Duncan______
          CHAIRPERSON


INDEX

CASE ID
AR20060015599
SUFFIX

RECON
 
DATE BOARDED
20070607 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.