RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	25 October 2007  
	DOCKET NUMBER:  AR20070007742 


	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.  Phyllis B. Mackey

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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, to be awarded the Purple Heart with Oak Leaf Cluster and the Air Medal, and to have these awards added to his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge. 

2.  The applicant states, in effect, that General Orders (Number 70) were published awarding him the Purple Heart, for wounds he received in action on 
27 December 1967, and his service record lists wounds (perforated eardrums) received on 20 January 1968.  

3.  The applicant provides a copy of VA Form 07-3101, Veterans Administration Request for Information, in support of his application. 

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, and 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.  The applicant requested correction of his records to show award of the Air Medal.  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 Air Medal under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.
3.  The applicant’s records show that he enlisted in the Regular Army on 
7 September 1966.  He completed basic combat training at Fort Jackson, South Carolina, and his advance individual training at Fort Lee, Virginia.  After completing all required training, he was awarded the military occupational specialty (MOS), 63J (Quartermaster Light Equipment Repairman).  The applicant was reclassified to the MOS of 11C (Infantry, Indirect Fire Crewman) in October 1967, and reclassified again to the MOS of 11B (Light Weapons Infantryman) on 26 December 1968.  

4.  The applicant served in Vietnam from 12 December 1967 through 
11 December 1968, with Company A, 1st Battalion (Airborne), 502nd Infantry Regiment, in the duty MOS of 11B.  

5.  The applicant was released from active duty, under honorable conditions, on 28 August 1972, under the provisions of Army Regulation (AR) 635-200, at the expiration of his term of service.  He was separated in the rank and pay grade of Private, E-1.  On the date he was released from active duty, he had completed a total of 4 years, 7 months, and 6 days of active service, and had a total of 706 days of lost time, due to AWOL (absent without leave) and confinement.  The applicant was credited with 11 months and 29 days of foreign and/or sea service.

6.  Item #24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s DD Form 214, dated 6 September 1967, shows he was awarded the Parachutist Badge and the National Defense Service Medal, and his DD Form 214 dated, 28 August 1972, shows he was awarded the:  National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Two Overseas Service Bars.  

7.  The applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 26 January 1981, with the following changes:  deleted:  Vietnam Service Medal and Vietnam Campaign Medal; added:  Bronze Star Medal; Army Commendation Medal; Purple Heart; Vietnam Service Medal, with one Silver Service Star; Republic of Vietnam Campaign Ribbon, with Device (1960); Combat Infantryman Badge;  
Expert Marksmanship Qualification Badge with Rifle Bar; Parachutist Badge; and Republic of Vietnam Gallantry Cross with Palm, Unit Citation.  The Purple Heart, with Oak Leaf Cluster, is not shown on the applicant’s DD Form 214.

8.  Item 40 (Wounds) of the applicant’s 14 January 1969 DA Form 20, Enlisted Qualification Record, shows that he received wounds (perforated eardrums) on
20 January 1968.

9.  Item 41 (Awards and Decorations), of the same DA Form 20, shows that the applicant was awarded the Purple Heart, by General Orders Number 70, dated
15 February 1968. 

10.   General Orders Number 70, published by Department of the Army, Headquarters, 101st Airborne Division, APO San Francisco, dated 15 February 1968, awarded the applicant the Purple Heart for wounds received in action on 27 December 1967.  This information corresponds with the entry shown in Item 41, of the applicant’s DA Form 20.   

11.  The applicant's name does not appear on the Vietnam Casualty List.  

12.  AR 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 by military medical personnel, and the medical treatment must have been made a matter of official record.

13.  The applicant's service medical records are not available for the Board's review.  On 25 April 1973, the VA Regional Office, New York, New York, requested the applicant's medical records concerning his alleged wounds received on 27 December 1967 and to verify the nature of his wounds.  A VA Form 70-3101, Request for Information, shows that written documentation in the form of General Orders Number 70 was provided concerning the award of the Purple Heart on 15 February 1968 for wounds received in action on 
27 December 1967 (nature of wound not shown).  The applicant’s service record list wounds (perforated eardrums) as wounds received on 20 January 1968 which would constitute the award of a second Purple Heart (Purple Heart with Oak Leaf Cluster).

14.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

15.  AR 600-200, paragraph 9-53 states that Wounds (Item 40 [of the DA Form 20]) required the entry of a brief description of wounds or injuries requiring medical treatment, received through hostile or enemy action, including those requiring hospitalization.  The date the wound or injury was incurred was also required.



DISCUSSION AND CONCLUSIONS:

1.  The applicant received wounds on two occasions while serving in Vietnam.
 
2.  Item 41 (Awards and Decorations), of the applicant’s 14 January 1969 DA Form 20, shows that the applicant was awarded the Purple Heart on 15 February 1968 for wounds received in action. 

3.  Item 40 (Wounds), of the same DA Form 20 shows that he received wounds (perforated eardrums), on 20 January 1968.  There is no evidence the applicant was awarded a Purple Heart for this wound.  Had the wound not been incurred as a result of enemy action, a historical record of the injury and the date would not have been made on the DA Form 20.

4.  Based on evidence obtained from the applicant’s records, and the provisions of the applicable regulations, the applicant is entitled to award of the Purple Heart with Oak Leaf Cluster, as a result of the injury he received to his eardrums on
20 January 1968, and having this award added to his DD Form 214.  
 
BOARD VOTE:

__LDS __  __RSV __  _SWF___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding the applicant the Purple Heart with Oak Leaf Cluster and adding this award to his DD Form 214.



	_____Linda D. Simmons______
          		CHAIRPERSON
INDEX

CASE ID
AR200700077742
SUFFIX

RECON

DATE BOARDED
20071025
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.