RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011851 


	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. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 Purple Heart and all other awards to which he is entitled based upon his service in the Republic of Vietnam.

2.  The applicant states that his records were lost and that he is unsure which awards should be shown on his records.  He also states he contracted typhoid fever in Vietnam and is now disabled with a 90 percent disability rating from the Department of Veterans Affairs (DVA).  He thinks his typhoid fever may entitle him to the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 April 1972, and a copy of General Orders Number 11262, dated 24 November 1971, awarding him the Air Medal (2nd through 17th Award), 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, 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's records show that he enlisted in the Regular Army on 29 August 1969 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 44E (Machinist).  He was honorably separated and transferred to the U.S. Army Reserve Control Group on 27 April 1972.  The highest rank he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s records further show that he served in the Republic of Vietnam during the period 13 October 1970 through 27 May 1972.  He was assigned to the following units:

	a.  Company B (Assault Helicopter), 158th Aviation Battalion (Assault Helicopter), 101st Airborne Division (Airmobile), during the period 13 October 1970 through 11 December 1971;

	b.  135th Aviation Company (Assault Helicopter), 11th Combat Aviation Battalion during the period 11 December 1971 through 15 February 1972; and

	c.  73rd Aviation Company (Surveillance Airplane) during the period 22 February 1972 through 27 May 1972.

4.  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, the Vietnam Campaign Medal, two Overseas Service Bars, the National Defense Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was awarded the National Defense Service Medal, the Aircraft Crewman Badge, the Air Medal, and the Air Medal (2nd through 17th Award).

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

7.  The applicant's records do not contain general orders which authorized him award of the Purple Heart.  The applicant's name is not shown on the Vietnam Casualty Roster.

8.  The applicant's medical records show that he was diagnosed with and treated medically and surgically for Typhoid Fever during his service in the Republic of Vietnam. 

9.  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 by military medical personnel, 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.

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

11.  Headquarters, 101st Airborne Division (Airmobile), Special Orders Number 236, dated 24 August 1971; show that the applicant was awarded the Aircraft Crewman Badge on 21 August 1970.

12.  Headquarters, 101st Airborne Division (Airmobile), Special Orders Number 9293, dated 11 September 1971; show that the applicant was awarded the Air Medal for meritorious achievement while participating in aerial flight during the period 20 May 1970 to 2 June 1971.

13.  Headquarters, 101st Airborne Division (Airmobile), Special Orders Number 11262, dated 24 November 1971; show that the applicant was awarded the Air Medal (2nd through 17th Award) for meritorious achievement while participating in aerial flight during the period 2 June 1971 to 21 November 1971.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the units, to which the applicant was assigned, were cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation as follows.  Although multiple awards of this unit citation badge may not be worn, official military awards and historical records will indicate all awards received:

	a.  the 158th Aviation Battalion, for the period 1 March 1971 to 9 October 1971, by Department of the Army General Order Number 6, dated 1974; and

	b.  the 135th Aviation Company, for the period 26 September 1971 to 10 October 1971, by Department of the Army General Order Number 54, dated 1974.

15.  Department of the Army Pamphlet 672-3 lists the unit awards received by units serving in Vietnam.  This document shows the units, to which the applicant was assigned, were cited for award of the Republic of Vietnam Civil Actions Honor Medal-First Class as follows.  Although multiple awards of this unit citation badge may not be worn, official military awards and historical records will indicate all awards received:



	a.  the 158th Aviation Battalion, for the period 30 October 1970 to 7 December 1970, by Department of the Army General Order Number 11, dated 1973; and

	b.  the 135th Aviation Company, for the period 1 January 1971 to 31 December 1971, by Department of the Army General Order Number 32, dated 1973.

16.  Department of the Army Pamphlet 672-3 lists the unit awards received by units serving in Vietnam.  This document shows the 158th Aviation Battalion was cited for award of the Presidential Unit Citation during the period 8 February 1971 to 28 March 1971 by Department of the Army General Order Number 13, dated 1974.

17.  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.

18.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive, Phase VII, the Consolidation I and II, and the Vietnam CEASE-FIRE 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.  A silver service star is authorized in lieu of five bronze service stars.

19.  A review of the applicant's service record shows no derogatory information that would disqualify him for the first award of the Good Conduct Medal

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show all awards he was entitled for his service in the Republic of Vietnam to include, in effect, 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.  The Typhoid Fever, which is caused by a bacteria transmitted by ingesting food/water contaminated with the feces of an infected person does not qualify for award of the Purple Heart. 

4.  General Orders show the applicant was awarded two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation which are not shown on his records.  Therefore, he is entitled to wear one of those awards and have both awards listed on his records.  

5.  General Orders show the applicant was awarded two awards of Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation which are not shown on his records.  Therefore, he is entitled to wear one of those awards and have both awards listed on his records. 

6.  General Orders show the applicant was assigned to a unit that was awarded the Presidential Unit Citation.  Therefore, he is entitled to correction of his records to show this award. 

7.  Special Orders show the applicant was awarded the Aircraft Crewman Badge, and the 1st award of the Air Medal on 11 September 1971, and he was awarded the Air Medal (2nd through 17th Award) on 24 November 1971.  Therefore, he is entitled to award of the Air Medal with Numeral 18.  He is also entitled to correction of his records to show these awards.

8.  Evidence of record confirms that the applicant served honorably during the period 29 August 1969 to 27 April 1972.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show award of the Good Conduct Medal and to correction of his records to show this award.

9.  Evidence of record shows that the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of four bronze service stars to be affixed to his Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__jev___  __tmr___  __jcr___  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 the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 29 August 1969 to 27 April 1972; and 

	b.  showing award of the Good Conduct Medal (1st Award), two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, two awards of Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation, the Presidential Unit Citation, the Aircraft Crewman Badge, the Air Medal with Numeral 18, and four bronze service stars to be affixed to 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 award of the Purple Heart.



						James E. Vick
______________________
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.