RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20070012962 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 award of the Purple Heart and the Bronze Star Medal with “V” Device.

2.  The applicant states that he was wounded by shrapnel during a combined mortar and small arms fire attack in October 1967 while serving in the Republic of Vietnam.   

3.  The applicant provides a self authored statement, dated, 14 April 2007; a statement by his former commanding officer, dated 20 March 2006; and four other witness statements from former unit member and comrades in arms, dated on miscellaneous dates; 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 he enlisted in the Regular Army for a period of 3 years on 22 July 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12A (Pioneer).  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  He was honorably discharged on 29 November 1967 for the purpose of immediate reenlistment and he reenlisted for a period of 4 years on
30 November 1967.

3.  The applicant's records further show he served in the Republic of Vietnam during from 4 February 1967 to 20 March 1968.  He was assigned to Company A, 326th Engineer Battalion, 101st Airborne Division.


4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 29 November 1967, shows he was awarded the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with 1960 Device, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 24 does not show award of the Purple Heart or the Bronze Star Medal with "V" Device.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart or the Bronze Star with "V" Device.

7.  The applicant’s record does not contain general orders awarding him the Purple Heart or the Bronze Star Medal with "V" Device.

8.  The applicant's name is not shown on the Vietnam Casualty Roster.

9.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart or Bronze Star Medal with "V" Device orders on file for the applicant.  

10.  The applicant’s available medical records do not show he sustained any wounds or injuries as a result of hostile action or show he was treated for wounds or injuries sustained as a result of hostile action.

11.  On 22 April 1970, the applicant underwent a medical examination.  He completed a Standard Form 89 (Report of Medical History) indicating that he was treated by Army doctors for colds and trouble with his left leg in May 1968.  The military doctor completed the Standard Form 88 (Report of Medical Examination) and remarked that the applicant was qualified for separation.   

12.  In his self-authored statement, dated 14 April 2007, the applicant describes the events that took place in October 1967 on Hill 488 in the Republic of Vietnam. He states that his unit’s mission was to hold the hill until the 327th Infantry Regiment arrived.  He was on guard duty when his unit started receiving enemy small arms and mortar fire.  As he was heading for the bunker, a mortar round landed several feet away from him and threw him against a pile of sandbags.  As the mortar fire stopped, he was able to make it back to the bunker where his first sergeant called the medics.  It was then he realized he had been hit and that he received numerous cuts and abrasions to his face, chest, legs, and lower back.   The medic cleaned and patched up his cuts and the first sergeant told him he would be put in for the Purple Heart and the Bronze Star Medal.

13.  In addition to his own self-authored statement, the applicant submitted five witness statements, one of which was authored by his former commanding officer, as follows:

	a.  In his statement, the former commanding officer states that he was the commander of the long range reconnaissance detachment (LLRD) of the 1st Brigade, 101st Airborne Division, in Vietnam.  While under his command, the applicant suffered serious combat related, multiple fragmentation wounds to the left side of his body, leg, shoulder, and head, resulting from shrapnel during a mortar attack, near the village of Chu Lai, on or about 31 October 1967.  The commander further adds that the applicant refused to be medically evacuated even though he was literally blown off his feet and knocked unconscious, as well as injuring his back.

	b.  In his statement, dated 14 August 2006, Mr. B******, a former comrade, states that he served with the applicant on several missions during his tour in the Republic of Vietnam.  He corroborates other statements and verifies that the applicant was indeed, seriously wounded in action, in Chu Lai.

	c.  In his statement, dated 2 July 2006, Mr. W********, a former comrade, scout, and radio telephone operator (RTO), states that during the September-October 1967 timeframe, the team was deployed out of Chu Lai Camp and was inserted into a forward fire base with an infantry unit.  During the evening hours, his team made contact with the enemy and the following day, they were under mortar/rocket fire on the hill they occupied.  The applicant was wounded during this attack and suffered multiple shell fragments.

      d.  In his statement, dated 5 June 1997, Mr. W*****, a former comrade, states that he was part of a team of three LRRD teams of the 1st Brigade, 101st Airborne Division, in Vietnam, located on Hill 488 with the 1st Battalion, 327th Infantry, pulling missions from that location.  During a down time one day, they started receiving incoming mortar and probing attack.  Several individuals were wounded during that attack.  The applicant was one of those wounded, receiving multiple lacerations to the torso and head. 
	e.  In his statement, dated 5 February 1998, Mr. D****, a former comrade and member of a six-man LRRD team, 1st Brigade, 101st Airborne Division, in Vietnam, states that there were three teams on Hill 488, co-located with the 1st Battalion, 327th Infantry.  One morning, elements of the LLRD team and the 327th Infantry were checking the perimeter defenses, when they suddenly started receiving heavy rocket and mortar rounds, along with a ground attack.  A number of people were injured before they could make it to the bunker, one of which was the applicant, who received shrapnel wounds to his shoulder, legs, and head.  He was sent for treatment to the medic station on the hill.  The unit commander wanted to send him to the rear base camp so he could be checked and treated properly, but the applicant talked him out of it, feeling that his absence would have been detrimental to the team.

14.  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.

15.  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.  Awards may be made for acts of heroism, performed under circumstances described above, which are of lesser
degree than required for the award of the Silver Star.

16.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

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

18.  Headquarters, 1st Brigade, 101st Airborne Division, General Orders Number 430, dated 13 February 1968; show the applicant was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from 3 March 1967 to 13 February 1968.

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974, and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation, based on Department of the Army General Orders Number 48, dated 1971.

20.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive, Phases II and III, and the TET Counteroffensive 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart and the Bronze Star Medal with “V” Device.

2.  With respect to award of the Purple Heart, notwithstanding the supporting sworn statements provided by the applicant, his former commanding officer, and his comrades, which were all prepared over 30 years after the fact, there is no corroborating evidence in the available records and the applicant has not provided sufficient evidence showing that he was wounded and/or treated for wounds sustained as a result of hostile action.  

3.  There are no general orders that show the applicant was awarded the Purple Heart; there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds; and the applicant's name is not listed on the Vietnam Casualty Roster.  In the absence of documentation that shows he 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.

4.  With respect to award of the Bronze Star Medal with "V" Device, the applicant's records do not show the applicant was recommended for or awarded the Bronze Star Medal with "V" Device.  Therefore, there is insufficient evidence to award the applicant the Bronze Star Medal with "V" Device in this case.

5.  However, while the available evidence is insufficient for awarding the applicant the Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  General Orders show the applicant was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam.  This award is not shown on his records; therefore, he is entitled to have his records corrected to show this award.

7.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation, which are not shown on his records.  Therefore, he is entitled to have his records corrected to show these unit awards.

8.  The evidence of record shows that the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to awards of three bronze service stars to be affixed to the Vietnam Service Medal.

9.  Evidence shows that the applicant’s records contain an 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

__xxx___  __xxx___  __xxx___  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 to award the Purple Heart or the Bronze Star Medal with "V" Device.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by showing award of the Army Commendation Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.





								XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070012962



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DEPARTMENT OF THE ARMY
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