RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070010507 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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, a second award of the Purple Heart for injuries that he received on 25 August 1971.  He also requests that he be awarded the Air Medal and that his records be corrected to show that he was promoted to the pay grade of E-5 two days after he departed Vietnam.

2.  The applicant states that he is currently receiving 20 percent disability pay for a back injury that he received when he was in the Army.  He states that he signed the paperwork for award of the Purple Heart; however, he never received it and it is not listed on his Report of Transfer or Discharge (DD Form 214).  He states that he never received the Air Medal and that he was promoted to the pay grade of E-5 after he left Vietnam.

3.  The applicant provides in support of his application, a copy of a Daily Staff Journal, dated 25 August 1971; a portion of a letter pertaining to significant events that occurred while he was in Vietnam; and electronic mail between another individual and himself regarding the Daily Staff Journal. 

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 2 December 1969, the applicant enlisted in the Army in Chicago, Illinois, for 3 years, in the pay grade of E-1.  

3.  On 5 February 1970, Special Orders Number 35, published by Headquarters, U.S. Army Training Center, Fort Campbell, KY, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), with a qualification date of 23 January 1970.  He went on to successfully complete his training as a helicopter repairman.  


4.  The applicant was promoted to the pay grade of E-2 on 28 February 1970 and he was promoted to the pay grade of E-3 on 28 April 1970.  The applicant was transferred to Vietnam on 28 May 1970 and he was promoted to the pay grade of E-4 on 22 August 1970.

5.  General Orders Number 3282, published by Headquarters, 1st Aviation Brigade on 15 April 1971, awarded the applicant the Air Medal for meritorious achievement while participating in aerial flight, for the period covering 2 October 1970 to 14 January 1971, while in the Republic of Vietnam.

6.  The Daily Staff Journal that the applicant submitted in support of his application indicates that on 25 August 1971, his aircraft was shot down at 1200 hours and he was medically evacuated by “Shotgun 25.”  The Daily Staff Journal also shows that he sustained minor injuries during this incident.

7.  On 8 November 1971, General Order Number 110, published by Headquarters, 3rd Surgical Hospital, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 21 October 1971 in the Republic of Vietnam.  However, his record fails to show that he was ever awarded a Purple Heart for 25 August 1971 incident.

8.  The applicant was transferred to the Continental United States on 14 January 1972.  His Enlisted Qualification Record shows that his conduct and efficiency ratings were excellent while he was in the Army.

9.  On 20 January 1972, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-3, as a result of a phase down release program.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.

10.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Army Commendation Medal, the Vietnam Service Medal, the Purple Heart and the Republic of Vietnam Campaign Medal with Device (1960).  However, the Air Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14) were never included on his DD Form 214.

11.  A review of the available records fails to show that the applicant was ever promoted to the pay grade of E-5 while he was in the Army.

12.  On 7 February 1972, General Orders Number 352, published by Headquarters, 1st Aviation Brigade, awarded the applicant the Air Medal (Second through Eighth Award) for the period 15 January 1971 to 30 December 1971.

13.  Authorization for Individual Foreign Award was published on 11 April 1972, authorizing the applicant to accept and wear the Republic of Vietnam Gallantry Cross with Bronze Star, under the provisions of Army Regulation 672-5-1.

14.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

15.  Army Regulation 672-5-1, in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

16.  Army Regulation 600-8-22 (Military Awards) provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral "2" denotes the second award of the Air Medal.

17.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the four following campaigns: the Sanctuary Counteroffensive Campaign, which extended from 1 May through 30 June 1970; the Vietnam Counteroffensive, Phase VII Campaign, which extended from 1 July 1970 through 30 June 1971; the Consolidation I Campaign, which extended from 1 July through 30 November 1971; and the Consolidation II Campaign, which extended from 1 December 1971 through 29 March 1972 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.  Army Regulation 670-1 (Uniforms and Insignia), in effect at the time, governs the requirements for the Overseas Service Bar.  In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message.  There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars.  For Vietnam service, one overseas service bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the Overseas Service Bar.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records, nor has the applicant submitted any evidence to support his contention that he was promoted to the pay grade of E-5 while he was in the Army.  His records show that he was promoted to the pay grade of E-4 on 22 August 1970, and that he was released from active duty in that pay grade on 20 January 1972.

2.  The applicant's record shows that he was awarded the Purple Heart in General Orders Number 110 dated 8 November 1971 for an injury that occurred on 21 October 1971.  The Purple Heart was awarded to the applicant on 8 November 1971 and it is properly reflected on his DD Form 214.  

3.  However, the Daily Staff Journal that he submitted in support of his application indicates that he was injured and medically evacuated on 25 August 1971, while he was in Nam Cam, Vietnam.  Therefore, his records should be corrected to reflect a second award of the Purple Heart.

4.  Additionally, an error was made during the preparation of the applicant's DD Form 214 which resulted in the Air Medal being omitted.  The evidence of record shows that he was subsequently awarded the Air Medal (Second through eighth Award).  Therefore, his records should be corrected show these awards.

5.  In accordance with the applicable regulation, the applicant is entitled to be awarded the Army Good Conduct Medal based on his excellent conduct and efficiency for the period 2 December 1969 through 20 January 1972.

6.  His DD Form 214 should be corrected to show that he was awarded the Republic of Vietnam Gallantry Cross with Bronze Star; three Overseas Service Bars to reflect his time in Vietnam, and four bronze service stars for wear on his already-awarded Vietnam Service Medal to show his campaign participation.

7.  Therefore, it would now be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__JI        _  __ENA__  __DKH__  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  awarding him the Purple Heart (First Oak Leaf Cluster) for wounds received in action on 25 August 1971, while he was in Nam Cam, Vietnam;

b.  awarding him the Army Good Conduct Medal for the period 2 December 1969 through 20 January 1972; and

c.  amending his DD Form 214 to show that he was awarded the Purple Heart (First Oak Leaf Cluster); the Air Medal with Numeral "8"; the Army Good Conduct Medal; the Republic of Vietnam Gallantry Cross with Bronze Star; the Expert Marksmanship Qualification Badge with Rifle Bar (M-14); three Overseas Service Bars; and four bronze service stars for wear on his already-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 amending his DD Form 214 to show that he was promoted to the pay grade of E-5.




____John Infante    _____
          CHAIRPERSON




INDEX

CASE ID
AR20070010507
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT PLUS
REVIEW AUTHORITY

ISSUES         1.189
110.0000/DISCHARGE DOCUMENT
2.  1
110.0400/ADD APPROVED AWARDS
3.  46
107.0000AWARDS & DECORATIONS
4.  102
107.0056/ARMY GOOD CONDUCT MEDAL
5.  

6.