RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070004426 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

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, award of the Silver Star and Purple Heart.

2.  The applicant states, in effect, that he did not receive a Silver Star for 10,000 miles of transportation and at the same time a Purple Heart for injuries received in combat. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his DA Form    2627-1 (Record of Proceeding Under Article 15, UCMJ (Uniform Code of Military Justice) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 March 1970, the date of his release from active duty.  The application submitted in this case is dated 12 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 record shows he was inducted into the Army of the United States (AUS) on 9 July 1968.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Polk, Louisiana.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 64B, Heavy Vehicle Driver.  

4.  The applicant was promoted to pay grade E-5 on 5 February 1970.  He served in Vietnam from 4 April 1969 to 26 March 1970.  He served until he was released from active duty on 27 March 1970.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged on 1 July 1974.


5.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; Vietnam Service Medal; and the Republic of Vietnam Campaign Medal.  His DD Form 214 does not show any additional awards.

6.  There is no evidence in the available records to show he was recommended for or awarded the Silver Star.

7.  The applicant provided a copy of his DA Form 2627-1 which shows that he was assigned to the 321st Transportation Company (Mdm Trk [Medium Truck]).  

8.  Item 38 (Record of Assignments), of his DA Form 20 (Enlisted Qualification Record), shows that the applicant was assigned to the 321st Transportation Company from 18 April 1969 to 17 November 1969, while serving in Vietnam.

9.  His DA Form 20 does not show an entry in item 40 (Wounds) and does not show the Purple Heart as an entry in item 41 (Awards and Decorations). 

10.  The applicant's name does not appear on the Vietnam Casualty List for a wound received as a result of hostile action. 

11.  The applicant's medical records are unavailable for review

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  The applicant requested correction of his records to show award of the Silver Star.  Section 1130, Title 10, United States Code provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The applicant has been notified by separate correspondence of the procedure for applying for award of the Silver Star under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.

14.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

15.  The applicant’s DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show the two bronze service stars to which he is entitled for his campaign participation.  Army Regulation 600-8-22 provides that a bronze service star is authorized for the Vietnam Service Medal for participation
in each campaign.

16.  Department of the Army Pamphlet 672-3 shows that the applicant's unit was cited for award of the Meritorious Unit Commendation, by Department of the Army General Orders (DAGO) Number 53, dated 1970, and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, by DAGO 8, dated 1974, while he was assigned to the unit.  These unit awards are not shown on the applicant's DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he did not receive a Purple Heart for injuries received in combat.   However, there is no evidence, and he has provided none, to support his allegation.  There are no orders awarding the applicant the Purple Heart, he is not listed on the Vietnam Casualty List, and there are no medical records available to show that he was treated for a wound that he might have received as a result of hostile action.  Therefore, he is not entitled to correction of his records to show the award of the Purple Heart.

2.  The applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal.  While in Vietnam, he participated in two campaigns and he is therefore, entitled to be awarded two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

3.  The applicant's unit was cited for award of the Meritorious Unit Commendation; and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, while he was a member of the unit.  He is, therefore entitled to correction of his records to show these unit awards.
4.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 March 1973.  Although the applicant did not file within the ABCMR's 3-year 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 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __WB___  __DLL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 for award of the Purple Heart.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Vietnam Service Medal, with two bronze service stars; the Meritorious Unit Commendation; and the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation. 



_____William D. Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20070004426
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070816
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700327
DISCHARGE AUTHORITY
AR 635-200, chapter 5
DISCHARGE REASON

BOARD DECISION
DENY/grant
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.