RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 January 2008
	DOCKET NUMBER:  AR20070012060 


	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. Frank C. Jones, II

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 two awards of the Purple Heart and two awards of the Bronze Star Medal.

2.  The applicant states that he was a Prisoner of War (POW) for 47 months in the Republic of Vietnam.  He was awarded two awards of the Purple Heart and two awards of the Bronze Star Medal that are not shown on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 21 September 1973; and four newspaper articles describing the applicant's POW experience and his return home, 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 was inducted into the Army of the United States on 21 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was staff sergeant/E-6.  He was honorably discharged from active duty on 21 September 1973 by reason of permanent disability retirement.

3.  The applicant's records also show that he served in the Republic of Vietnam during the period 18 August 1968 through 7 March 1973.  He was assigned to Company A, 3rd Battalion, 12th Infantry, 4th Infantry Division.

4.  On 27 March 1969, members of the applicant's platoon were sent to conduct a reconnaissance of a hostile area when they came under enemy hostile weapons fire and were pinned down.  After withdrawal of the platoon from the area, the applicant was reported missing.  He was subsequently reported as Missing in Action (MIA) on 27 March 1969.  

5.  On 6 February 1973, the applicant's status was changed from MIA to POW, to show he had been captured on 27 March 1969, instead of missing.  He was returned to military control on 5 March 1973. 

6.  Subsequent to his return to military control, the applicant underwent a Physical Evaluation Board (PEB) at Walter Reed Army Medical Center, Washington, D.C.  The PEB recommended the applicant be permanently retired from the Army with a combined disability rating of 100 percent.  He was released from active duty on 21 September 1973 and placed on the retired list effective 22 September 1973. 

7.  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 National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Good Conduct Medal, the Combat Infantryman Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, nine Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar (M14 and M-16), Pistol Bar (.45 caliber), and Mortar Bar (81 mm).  Item 24 does not show awards of the Purple Heart or the Bronze Star Medal.

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

9.  The applicant's name appears on the Vietnam Casualty Roster as follows:

	a.  on 27 March 1969, code 35 (indicating he was captured) and code 31 (indicating it was confirmed); and

	b.  on 5 March 1973, code 36 (indicating he returned to military control from captivity) and code 35 (indicating he was captured).

10.  Item 73 (Notes) of the applicant's Standard Form (SF) 88 (Report of Medical Examination), dated 17 August 1973, shows that the applicant suffered, at capture (on 27 March 1969) a gunshot wound , temporal area, with depressed skull fracture.  

11.  The applicant's DA Form 8-118 (Medical Board Proceedings), dated 20 August 1973, states that the applicant had the following medical conditions and/or physical defects upon his return to military control: "Hemi paresis, right, spastic, upper more severe than lower, with strong hip and thigh, secondary to gunshot wound, left parietal area; wounded in action in March 1969; Wounded in Action; and Defect, skull, secondary to craniotomy, performed in the Republic of Vietnam during captivity." 

12.  The applicant's DD Form 199 (Physical Evaluation Board Proceedings) listed the applicant's disability as follows:

	a.  Paralysis, all radicular groups, right, incomplete, severe;

	b.  Skull, loss of, both inner and outer tables, area larger than two square inches;
	
	c.  Paralysis, sciatic nerve, right, moderately severe;

	d.  Epilepsy, grand mal and minor motor with at least one major seizure in the past 6 months; and

	e.  Chronic brain syndrome associated with brain trauma manifested by expressive aphasia; slight. 

13.  Department of the Army, Letter Order, dated 29 October 1974, shows that by direction of the President, under the provisions of Executive Order 11046, dated 24 August 1962, the applicant was awarded the Bronze Star Medal (1st Oak Leaf Cluster) for meritorious service in connection with military operations against hostile forces in the Republic of Vietnam, during the period 27 March 1969 to 5 March 1973.

14.  In a memorandum, dated 29 October 1974, the Assistant Chief, Military Awards Branch, Headquarters, Department of the Army, U.S. Army Military Personnel Center (now known as HRC), Alexandria, Virginia, stated that award of the Bronze Star Medal (1st Oak Leaf Cluster) was approved for issue and presentation to the applicant within 60 days of the date of the memorandum. 

15.  By endorsement, dated 14 January 1975, the Assistant Adjutant, Headquarters, U.S. Army Garrison, Indiantown Gap Military Reservation, Annville, Pennsylvania, stated that the applicant was presented the Bronze Star Medal (1st Oak Leaf Cluster) on 12 December 1974 by a military member of the American Legion.
16.  The Purple Heart was established by General George Washington at Newburgh, New York on 7 August 1782 during the Revolutionary War.  It was reestablished by the President of the United States per War Department General Orders Number 3 in 1932.  It was awarded in the name of the President of the United States to any member of the Armed Forces or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, died or sustained wounds as a result of hostile action.

17.  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 an 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.

18.  Section 521a of the National Defense Authorization Act of 1996, authorized award of the Purple Heart to any former prisoner of war who was wounded before 25 April 1962 while held as a prisoner of war or while being taken captive, in the same manner as a former prisoner of war who was wounded on or after that date.  Section 521b specifically stated that award of the Purple Heart for prisoners of war under Section 521a shall be made in accordance with the standards in effect on the date of the enactment of this Act to persons wounded on or after 25 April 1962.

19.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

20.  United States Army Vietnam Regulation 672-1 (Military Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.



21.  Review of the applicant's records indicates entitlement to an additional award that is not shown on his DD Form 214.

22.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Prisoner of War Medal.  The regulation states that the Prisoner of War Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive

23.  Army Regulation 600-8-22 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 Bronze Star Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to two awards of the Purple Heart and two awards of the Bronze Star Medal.

2.  Evidence of record shows that the applicant was with his platoon on a reconnaissance mission on 27 March 1969 when they came under enemy hostile weapons fire and were pinned down.  Evidence of record further shows that upon return to military control, the military doctor determined that the applicant sustained a gunshot wound to the head before being captured.  Any doubt that the applicant's wound was sustained as a result of hostile action, required treatment, and the medical treatment was made a matter of official record, should be resolved in the applicant's favor.  Therefore, the applicant is entitled to award of the Purple Heart.

3.  Evidence of record shows that the applicant suffered severe trauma, paralysis, epilepsy, and chronic brain syndrome, during his lengthy captivity.  Although it may appear that he suffered different injuries during his captivity, most of his injuries were "residual" or a result of the head injury he sustained on 27 March 1969.  Therefore, this is not considered a separate wound or injury and as such does not entitle the applicant to a second award of the Purple Heart.

4.  Headquarters, Department of the Army, Letter Order, dated 29 October 1974, shows that the applicant was awarded the Bronze Star Medal (1st Oak Leaf Cluster) for meritorious service in connection with military operations against hostile forces in the Republic of Vietnam during the period 27 March 1969 to 5 March 1973.  Therefore, the applicant is entitled to correction of his records to show this award, indicating the second award of the Bronze Star Medal.  

5.  Since Headquarters, Department of the Army, awarded the Bronze Star Medal (1st Oak Leaf luster), it must be presumed that there was evidence that the applicant was previously awarded the first award of the Bronze Star Medal.

6.  Evidence of record clearly shows that the applicant was captured and held in captivity during the period  27 March 1969 to 5 March 19973.  Therefore, he is entitled to award of the POW Medal and correction of his records to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__fcj___  __lmd___  __mjf___  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 showing award of the Purple Heart, the Bronze Star Medal (1st Oak Leaf Cluster), and the POW 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 (1st Oak Leaf Cluster).



							Frank C. Jones, II
	______________________
          		CHAIRPERSON




INDEX

CASE ID
AR20070012060
SUFFIX

RECON

DATE BOARDED
20080108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.