RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070003672 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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 Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show all of his awards to include two Purple Hearts.

2.  The applicant states, in effect, that he was wounded in the Republic of Vietnam and spent 4 days in the hospital.  He states that he was given two Purple Hearts but did not receive the certificates.  

3.  The applicant provides no additional documentation. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 12 November 1971.  The application submitted in this case is dated 27 February 2007.

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 12 March 1970, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11B2O (Light Weapons Infantryman).

4.  On 6 August 1970, the applicant was assigned for duty as an assistant gunner with Company B, 4th Battalion, 31st Infantry Regiment, 196th Infantry Brigade, in the Republic of Vietnam.

5.  On 1 August 1971, the applicant was returned to the United States for duty at Fort Knox, Kentucky.

6.  On 12 November 1971, the applicant was released from active duty.  He had attained the rank of specialist four, pay grade E4 and had completed 1 year, 
8 months and1 day of creditable active duty.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with "1960-" Device.  It does not show any awards of the Purple Heart. 

8.  The applicant’s name does not appear on the Vietnam Casualty Roster.

9.  Item 40 (wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) is blank. 

10.  The applicant's Report of Medical History and his Report of Medical Examination for separation does not indicate that he received any wounds.  His medical records are not available for review.   

11.  Army Regulation 600-8-22 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.

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

13.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were excellent.  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 

14.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying. 


15.  Special Orders Number 166, United States Army Training Center, Infantry, Fort Polk, Louisiana, dated 19 June 1970, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars. 

16.  Special Orders Number 188, United States Army Training Center, Infantry, Fort Polk, Louisiana, dated 13 July 1970, awarded the applicant the Expert Marksmanship Qualification Badge with Pistol Bar.

17.  Special Orders Number 294, Headquarters, Americal Division, dated 
21 October 1970, awarded the applicant the Combat Infantryman Badge effective 18 October 1970. 

18.  General Orders Number 08039, Headquarters, 23rd Infantry Division, dated 17 July 1971, awarded the applicant the Bronze Star Medal.  The accompanying certificate shows that it was awarded for meritorious achievement during the period from 1 August 1970 to 30 June 1971. 

19.  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 two campaign periods: the Vietnam Counteroffensive, Phase VII and the Consolidation I.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

20.  Department of the Army General Orders 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service in Vietnam to Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster.  There is no evidence of record to substantiate the applicant’s statement that he was presented two Purple Hearts for wounds sustained as a result of enemy action. Therefore, the applicant's request for award of two Purple Hearts should not be granted.



2.  The applicant’s records clearly show that he distinguished himself in the performance of his military service.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

3.  General Orders show that the applicant was awarded the Bronze Star Medal. Therefore, his records should be corrected to show this award.

4.  Special Orders show that the applicant was awarded the Combat Infantryman Badge.  Therefore, his records should be corrected to show this award.

5.  Special Orders show that the applicant was awarded the Expert Marksmanship Qualification Badge with Pistol Bar.  Therefore, his records should be corrected to show this award.

6.  Special Orders show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars.  Therefore, his records should be corrected to show these awards.

7.  General Orders show that the applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.

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

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 November 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
11 November 1974.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__ JRH __  __JI ____  __RML  _  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 Army Good Conduct Medal for the period from 
12 March 1970 to 12 November 1971; and

	b.  showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Bronze Star Medal, Army Good Conduct Medal, Combat Infantryman Badge, two bronze service stars to be affixed to his Vietnam Service Medal, Expert Marksmanship Qualification Badge with Pistol Bar, Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge.

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 award of the Purple Heart.  




___     John Infante _________
          CHAIRPERSON




INDEX

CASE ID
AR20070003672
SUFFIX

RECON
 
DATE BOARDED
20070724 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.