RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070003941 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea N. Nuppenau

Member

Mr. Dennis J. Phillips

Member

	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, award of the Combat Action Badge, the Navy Achievement Medal with Combat "V", and the Purple Heart.

2.  The applicant states, in effect, that he is entitled to the Purple Heart for a fragment wound sustained in the Republic of Vietnam.  The applicant continues that he is also entitled to other awards which were omitted from his DD Form 214.

3.  The applicant provides copies of DD Form 214, and two award certificates in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 March 1971, the date of his transfer to the United States Army Reserve (USAR).  The application submitted in this case is dated 5 March 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.  The applicant's service record shows he entered active duty on 2 April 1968 and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).  The applicant's record shows he served in the Republic of Vietnam during the period 27 August 1968 through 26 August 1969, while assigned to Company B of the 26th Engineer Battalion.  The applicant's record also shows that he served in Germany during the period 29 January 1970 through 22 March 1971.  

4.  On 23 March 1971, the applicant was honorably released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  The applicant's record shows that he completed 2 year, 11 months, and 22 days of total active service.  The highest rank the applicant held was specialist/pay grade E-4.
5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Combat Action Badge, the Navy Achievement Medal with Combat "V", or the Purple Heart.

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.  

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the Combat Action Badge, the Navy Achievement Medal with Combat "V", or the Purple Heart as authorized awards.  

8.  There are no general orders in the applicant's records to show he was awarded the Combat Action Badge, the Navy Achievement Medal with Combat "V", or the Purple Heart.

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

10.  On 28 February 1969, the applicant was recommended for award of the Navy Commendation Medal.  On 15 March 1969, the recommendation was down graded to the Navy Achievement Medal.  On 4 November 1969, the Secretary of the Navy approved award of the Navy Achievement Medal with Combat Distinguishing Device.

11.  The applicant's record contains a Department of the Navy Certificate which shows that on 4 November 1969, the Secretary of the Navy had awarded the Navy Achievement Medal (with Combat "V") to the applicant for outstanding performance of duty during the period from 28 January 1969 to 4 February 1969, while serving as a Combat Engineer with Company "L", 3rd Battalion, 26th Marines of the 9th Marine Amphibious Brigade, in the Republic of Vietnam. 

12.  Department of the Army, Headquarters, Americal Division General Orders Number 6614, dated 18 July 1969, shows that on 28 August 1969, the applicant was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force during the period of action from April 1968 through March 1969.  

13.  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.

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

15.  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 42, dated 1972.

16.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

17.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive Phase V, the Vietnam Counteroffensive Phase VI, the Tet Counteroffensive, and the Vietnam Summer-Fall 1969 Campaigns during his tour of duty in the Republic of Vietnam.  The same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

18.  On 2 May 2005, the Chief of Staff of the Army approved the creation of the Combat Action Badge to provide special recognition to Soldiers who personally engaged, or are engaged by, the enemy.  

Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations, or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.



Army Regulation 600-8-22 also states that award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.   Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Combat Action Badge, the Navy Achievement Medal with Combat "V", the Purple Heart, and any additional awards not shown.

2.  The applicant's record shows that he entered the Regular Army on 2 April 1968.  In accordance with Army Regulation 600-8-22 (Military Awards), the Combat Action Badge was not approved as an authorized award until 18 September 2001.  Therefore, the applicant does not meet the criteria for this award.

3.  Evidence of record shows the applicant was authorized award of the Navy Achievement Medal with Combat "V".  This award was omitted from his DD Form 214.  Therefore, based on the above he is entitled to correction of his records to show award of the Navy Achievement Medal with Combat "V". 

4.  General Orders show the applicant was authorized award of the Army Commendation Medal.  This award was omitted from his DD Form 214.  Therefore, based on the above he is entitled to correction of his records to show award of the Army Commendation Medal.

5.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant's name is not listed on the Vietnam Casualty Roster.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

6.  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.

7.  The applicant's record shows that the applicant participated in four campaigns during his service in Vietnam.  Therefore he is eligible for award of four bronze service stars to be affixed to his previously awarded Vietnam Service Medal.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 March 1971, therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 March 1974.  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:

________  ________  ________  GRANT FULL RELIEF 

_DJP___  _RNN___  __JCR___  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 showing he was awarded the Navy Achievement Medal with Combat "V"; the Army Commendation Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and award of four bronze service stars to be affixed to the previously awarded Vietnam Service Medal.

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 Combat Action Badge and the Purple Heart.




__Jeffrey C. Redmann_
          CHAIRPERSON

INDEX

CASE ID
AR20070003941
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1971/03/23
DISCHARGE AUTHORITY
AR635-200 
DISCHARGE REASON
Overseas Returnee
BOARD DECISION
Denial PH, 1130 CAB, and oawards
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.