RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 September 2007
	DOCKET NUMBER:  AR20070005607 


	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. Larry  C. Bergquist

Chairperson

Ms. Marla J. N. Troup

Member

Ms. Ernestine I. Fields

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 correction of his military records to show award of the Purple Heart for wounds sustained in the Republic of Vietnam.

2.  The applicant states, in effect, that the received injuries when his helicopter was shot down on 8 November 1969 in the Republic of Vietnam.

3.  The applicant provides copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), a letter of support, a letter from the Department of Veterans Affairs (VA), a letter from the Military Awards Branch, United States Army Human Resources Command, a single page from a Tampa, Florida, VA Medical Center examination report, a VA Decisional Review Report, and the United States Army Physical Disability Agency approval for combat-related special compensation.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 13 August 1942, the applicant entered into the United States Army.  He served in the Enlisted Reserve Component and in the Army of the United States until his release from active duty on 4 December 1943, to accept a commission.  He served as a commissioned officer until his discharge on 10 November 1947.

3.  During the period from 30 May 1948 to 18 February 1955, the applicant served as a commissioned officer in the United States Air Force.

4.  During the period from 15 June 1955 to 30 September 1962, the applicant served as a commissioned officer in the United States Army National Guard.

5.  During the period from 12 July 1967 to his retirement on 31 December 1977, the applicant served as a chief warrant officer in the United States Army National Guard.  

6.  During the period from 11 June 1969 to 5 February 1970, the applicant was assigned for duty as a rotary wing pilot with the 228th Aviation Battalion, 1st Cavalry Division, in the Republic of Vietnam.

7.  General Orders Number 718, 1st Cavalry Division, dated 13 January 1970, awarded the applicant the Distinguished Flying Cross for heroism while participating in aerial flight evidenced by voluntary action above and beyond the call of duty in the Republic of Vietnam.  The applicant distinguished himself by exceptionally valorous action on 8 November 1969, near Landing Zone Vivian, Republic of Vietnam.  When on approach to the Landing Zone, the aircraft was struck by enemy fire which caused both engines to fail and ignited a fire.  In spite of the hazardous conditions, he was able to cut off the fuel flow and assist the pilot in directing the craft away from populated areas.  Although the ship was engulfed in flames, he remained on board until the crew had been evacuated. [There is no mention of the applicant receiving any wounds or injuries during this incident.]

8.  On 26 November 1969, the applicant requested to be separated from active duty in the Republic of Vietnam, so that his wife, who was living at the time in Bien Hoa, Vietnam, and he could travel together while they visited Israel and the Mediterranean Sea area enroute to the United States. 

9.  On 4 December 1969, the battalion flight surgeon approved the applicant's request for assignment to the 34th General Support Group, in the Republic of Vietnam, as a test pilot on CH-47 helicopters following completion of maintenance.

10.  Records indicate that the applicant  returned to the United States on 
5 February 1970, for duty at Fort Rucker, Alabama.

11.  On 2 May 1970, the applicant was released from active duty and transferred to the Michigan Army National Guard. 

12.  In a Report of Medical Examination, dated 15 May 1970, the applicant stated that to the best of his knowledge and belief, there had not been any change in his mental or physical health condition since his last examination.


13.  Data for Retired Pay (DA Form 3713) dated 5 October 1977, shows that the applicant's highest grade held was major, pay grade 04.  He had completed 
27 years, 4 months, and 3 days of creditable active duty.

14.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the Distinguished Flying Cross, Bronze Star Medal, Air Medal 
(14 awards), Army Commendation Medal with "V" Device, and the Michigan Medal of Valor with oak leaf cluster. [Several items are also listed that are not recognizable as authorized awards.]  The Purple Heart is not listed.

15.  The applicant's name is not listed on the Vietnam Casualty Roster.  There are no general orders or other documentation in the applicant's records showing award of the Purple Heart. 

16.  On 27 March 2004, the applicant underwent a spine lumbosacral at the Tampa, Florida, VA Medical Center.  The clinical history indicates that the reason for this examination was the applicant's complaint of low back pain from a ground level fall 3 days earlier.  The procedure identified multiple metallic surgical sutures projecting in the midline extending from the lower visualized thoracic spine down to the upper sacrum with many of the sutures broken.  The findings of this examination are not available for review.

17.  On 3 October 2006, the VA Decision Review stated that the applicant's aircraft had been shot down on 8 November 1969, while in the Republic of Vietnam and that he subsequently suffered a lung collapse and underwent surgery.  The Decision Review does not state that his subsequent injuries were the direct result of his being shot down. 

18.  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. 

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




20.  Army Regulation 600-8-22 (Military Awards) as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  This regulation also provides that the second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal.

21.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 
3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

22.  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 campaigns: the Vietnam Summer-Fall 1969 and the Vietnam Winter-Spring 1970.    This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  A silver service star denotes participation in five campaigns.

23.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 228th Aviation Battalion, 1st Cavalry Division, during the time of the applicant's assignment, was cited in Department of the Army General Orders Number 11, dated 1973, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and in General Orders Number 42, dated 1972, for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

24.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal with "1960-" Device.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

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.  The evidence provided by the applicant shows that he underwent surgery on some undetermined date.  However, the evidence does not convincingly substantiate that his injuries were received when his aircraft was shot down in the Republic of Vietnam.  Therefore, the applicant's request for award of the Purple Heart should not be granted.

2.  Records show that the applicant served during a qualifying period for award of the National Defense Service Medal.  Therefore his DD Form 214 should be corrected to show this award.

3.  Records show that the applicant served during a qualifying period for award of the Vietnam Service Medal.  Therefore his DD Form 214 should be corrected to show this award.

4.  Records show that the applicant participated in two campaigns 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.

5.  General Orders show that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation.  Therefore, his DD Form 
214 should be corrected to show these foreign unit awards. 

6.  Records show that the applicant served during a qualifying period for award of the Republic of Vietnam Campaign Medal with "1960-" Device.  Therefore his 
DD Form 214 should be corrected to show this award.

7.  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.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_EF    ___  _TJNT __  ___LB___  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.

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 by showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the  Republic of Vietnam Campaign Medal with "1960-" Device.





__    Larry C. Bergquist____
          CHAIRPERSON




INDEX

CASE ID
AR20070005607
SUFFIX

RECON
 
DATE BOARDED
 20070911
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.