RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070005273 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

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 award of the Purple Heart, the Bronze Star Medal, the Silver Star Medal, and 2 Air Medals. 

2.  The applicant states, in effect, that he was told the paper work was put in to award him the requested awards and that he was shown the pages for those awards being placed at his unit personnel center in the Republic of Vietnam. 

3.  The applicant provides a self-authored statement in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart, the Bronze Star Medal, and the Silver Star Medal. 

2.  Counsel states, in effect, that the applicant is entitled to the awards. 

3.  Counsel provides a copy of the Veteran Administration (VA) disability evaluation letter for shell fragment wounds and a copy of the applicant's VA Psychological Assessment dated 7 April 2005. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 December 1970, the date of his discharge.  The application submitted in this case is dated 15 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 Board noted the applicant's request for the Bronze Star Medal, the Silver Star Medal, and 2 Air Medals.  However, the applicant has not exhausted the administrative remedy available to him under the provisions of Section 1130, Title 10, United States Code.  He has been notified by separate correspondence regarding submission of a recommendation for award of the Bronze Star Medal, the Silver Star Medal, and the 2 Air Medals under the provisions of law.  As a result, the Bronze Star Medal, the Silver Star Medal, and the 2 Air Medals requested by the applicant are not discussed further in these Proceedings. 

4.  The applicant's records show that he was inducted into the Army of the United States on 9 March 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer).  He was honorably discharged on 21 February 1968.

5.  The applicant's records show that he enlisted in the Regular Army on 8 November 1968 for a period of 3 years.  He completed advanced individual training and was awarded MOS 64A (Driver).  He was discharged under honorable conditions on 11 December 1970.

6.  The applicant's records show that he served in the Republic of Vietnam during the period 18 September 1969 through 20 May 1970.  He was assigned to Headquarters and Headquarters Company, 326th Engineer Battalion, 101st Airborne Division, as a combat engineer.

7.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart.

8.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show any entries for wounds received.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

9.  There are no medical records in the applicant's official military personnel file that show he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.

10.  The applicant records do not contain general orders which authorized him award of the Purple Heart.

11.  The applicant's name is not shown on the Vietnam Casualty Roster.

12.  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.

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

14.  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 5, dated 1973.

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 Civil Actions Honor Medal, First Class based on Department of the Army General Orders Number 48, dated 1971.

16.  Item 24 (Decoration, 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 Summer-Fall 1968, Vietnam Winter-Spring 1970, and the DA Sanctuary Counteroffensive campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

18.  Headquarters, 317th Engineer Battalion, Special Orders Number 235, dated 27 November 1967, shows that the applicant was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar on 6 November 1967.

19.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Orders Number 58, dated 27 February 1969, shows that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar on 7 February 1969.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.  



2.  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.

3.  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.

4.  General Orders show the applicant was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his separation document.  Therefore, he is entitled to correction of his records to show this award. 

5.  General Orders show the applicant was awarded the Republic of Vietnam Civil Actions Honor Medal-First Class, which is not shown on his separation document.  Therefore, he is entitled to correction of his records to show this award.

6.  Record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to the Vietnam Service Medal.

7.  Records show the applicant was awarded the Marksman Marksmanship Qualification Badge with Pistol Bar on 6 November 1967.  Therefore, he is entitled to correction of his records to show this award. 

8.  Records show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar on 7 February 1969.  Therefore, he is entitled to correction of his records to show this award.

9.  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.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 December 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 December 1973.  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 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mjf___  __lwr___  __dws___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.

2.  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 for award of the Purple Heart.

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 award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal-First Class, the Marksman Marksmanship Qualification Badge with Pistol Bar, the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar, and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal..




							Michael J. Flynn
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005273
SUFFIX

RECON

DATE BOARDED
20070814
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.