IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20070018674 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart and the Silver Star.

2.  The applicant states, in effect, that he served two tours of duty in the Republic of Vietnam.  The applicant continues that he was scheduled to enter his third tour, but was hospitalized at Fitzsimons Army Hospital, Denver, Colorado, for shrapnel wounds and other problems.  The applicant continues that he was told he would be put in for both the Purple Heart and the Silver Star.  The applicant adds that he eventually was awarded the Silver Star but he never received the Purple Heart.

3.  The applicant provides copies of a General Order for award of the Silver Star, dated 31 October 1970; a Certificate for award of the Army Commendation Medal with First Oak Leaf Cluster, dated 25 November 1970; and a Citation of award for the Army Commendation Medal with First Oak Leaf Cluster for the period December 1969 through November 1970 in support of this 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 military record shows that he entered the Regular Army on 18 July 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 62K (Grader Operator).  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 17 March 1970, shows while he was serving in the Republic of Vietnam, he was honorably discharged for the purpose of immediate reenlistment.  

3.  The applicant's DD Form 214, dated 10 June 1971, shows he was honorably released from active duty and placed on the Temporary Disability Retired List (TDRL).  This DD Form 214 also shows he completed a total of 1 year, 2 months, and 18 days of creditable Federal military service with no time lost and the highest rank he attained while serving on active duty was specialist/pay grade 
E-4.  

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Forms 214 do not show award of the Purple Heart or the Silver Star.

5.  There are no general orders in the applicant's records to show he was awarded the Purple Heart.  

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

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the Purple Heart or the Silver Star as authorized awards.

8.  The applicant's name does not appear on the Vietnam Casualty Roster for injuries sustained as a result of hostile action while in the Republic of Vietnam.

9.  There are no medical records in the applicant's official military personnel file which shows he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.




10.  The applicant's record contains a Department of the Army, Office of the Adjutant General, Washington, D.C. Letter Orders Number D2-517, dated 16 February 1973, which shows the physical disability evaluation board determined that the applicant was permanently unfit for duty by reason of a 
physical disability.  The letter further shows that the applicant was removed from the TDRL with a 10 percent disability rating and discharged from the service with severance pay, effective 28 February 1973.

11.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that while serving in the Republic of Vietnam he was assigned to Company C, 169th Engineer Battalion during the period 20 December 1969 through 4 May 1970; Headquarters and Headquarters Company, 26th Engineer Battalion during the period 13 May 1970 through 20 May 1970; and Battery C, 3rd Battalion, 82nd Artillery, during the period 21 May 1970 through 14 January 1971.  

12.  Headquarters, Americal Division General Orders Number 14334, dated
31 October 1970 awarded the applicant the Silver Star for gallantry in action against an armed hostile force in the Republic of Vietnam on 6 June 1970.

13.  Army Regulation 600-8-22 (Military Awards) 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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.

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

15.  The applicant provided a copy of a Citation, United States Army Vietnam, for award of the Army Commendation Medal with First Oak Leaf Cluster for distinguishing himself by meritorious service in support of military operations against communist aggression in the Republic of Vietnam during the period December 1969 through November 1970.

16.  The applicant provided a copy of a certificate, dated 25 November 1970, which awarded him the Army Commendation Medal with First Oak Leaf Cluster for meritorious service in the Republic of Vietnam during the period December 1969 through November 1970.  This certificate was signed by the major general in command.



17.  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 that, at the time of the applicant's assignment to Company C, 169th Engineer Battalion in the Republic of Vietnam the unit was cited for award of the Republic of the Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during the period 3 August 1967 through 9 February 1970 based on (DAGO) Department of the Army General Orders Number 43, dated 1970.

18.  Department of the Army Pamphlet 672-3 also shows the unit to which the applicant was assigned was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 42, dated 1972.

19.  The applicant's record shows that he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show an additional bronze service star indicating additional campaign credit.  The applicant's records indicate he participated in the Vietnam Summer-Fall 1969; the Vietnam Winter-Spring 1970; and the Vietnam Counteroffensive, Phase VIII campaigns.

20.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists the Republic of Vietnam campaigns.  During the applicant's tour of duty in the Republic of Vietnam credit was awarded for participation in three campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

21.  Army Regulation 600-8-22 (Military Awards) provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

22.  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 Army Commendation Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record should be corrected to show award of the Purple Heart due to injuries received from shrapnel wounds while in Vietnam. The applicant further contends that he is entitled to award of the Silver Star.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster.
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 records show he was treated at Fitzsimons Army Hospital, Denver, Colorado on 15 January 1971, for neurotic depressive reaction, ulcer with hiatal hernia, and mild malaria which were not sustained as a result of hostile action.  

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.

4.  General Orders show the applicant was awarded the Silver Star for gallantry in action against an armed hostile force in the Republic of Vietnam on 6 June 1970.  Therefore, the Silver Star should be added to his DD Form 214.

5.  Records show that the applicant participated in three campaigns during his service in the Republic of Vietnam.  Therefore he is eligible for award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal. 

6.  The applicant was assigned to a unit during a period it was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, these awards should be added to his DD Form 214.

7.  There is no evidence in the applicant’s military record which shows he received the award of the Army Commendation Medal or the Army Commendation Medal with First Oak Leaf Cluster.  Although, there are no orders for award of the Army Commendation Medical with First Oak Leaf Cluster in the available records, the certificate which was signed by an appropriate approval authority, together with the citation for this award is considered sufficient evidence to award the Army Commendation Medical with First Oak Leaf Cluster in this case.  Additionally, the applicant's overall military record, which includes the Silver Star, and his combat service during the period in question further supports the applicant's entitlement to the Army Commendation Medal with First Oak Leaf Cluster.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X____  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 Silver Star, the Army Commendation Medal with First Oak Leaf Cluster, 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.

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.




      ___________X____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070018674



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ABCMR Record of Proceedings (cont)                                         AR20070018674



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