IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080004049 


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, in effect, that he be awarded a second Purple Heart, the Air Medal and any numerical devices for subsequent awards of the Air Medal, the Bronze Star Medal, the Army Commendation Medal, and the Basic Aviation Badge (formerly named the Aircraft Crew Member Badge).  

2.  The applicant states, in effect, that he completed over 200 hours of combat flight time while serving as a Door Gunner with Companies A and B, 1st Aviation Battalion, 1st Infantry Division from May 1968 to September 1968.  He states he should have been awarded the Air Medal and any numerical devices for subsequent awards of the Air Medal, and also the Basic Aviation Badge.  He also states, in effect, that his award of the Bronze Star Medal was omitted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) because the orders are missing.  He further states that he was wounded by shrapnel in his left thigh on 26 March 1968, and that he was wounded in action a second time.  Additionally, he states that he was put in for the award of the Army Commendation Medal but he never received it.  

3.  The applicant provides a self-authored letter, dated 28 February 2008; a DD Form 214 that was issued to him on 17 April 1969; a DD Form 214 that was issued at the time of his release from discharge for physical disability on 29 June 1970; a DA Form 20 (Enlisted Qualification Record); orders, dated 27 July 1968, which awarded him the Purple Heart for wounds received in action on 26 July 1968; a Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), 
which appears to be initially dated 9 March 1968, but the copy of this document in his military records is actually initially dated 29 March 1968; a DA Form 2173 (Statement of Medical Examination and Duty Status) that was prepared in conjunction with a helicopter crash that he was involved in on 26 July 1968; and a DA Form 1361 (Recommended Findings of Physical Evaluation Board [Informal Hearing]) 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, in a previous application to the ABCMR, dated 30 December 2000, requested award of the Distinguished Service Cross, the Silver Star, the Distinguished Flying Cross, the Air Medal with "V" (for Valor) Device, and the Bronze Star Medal with "V" Device.  In a letter, dated 10 May 2001, the applicant was advised that he had to submit a separate DA Form 638 (Recommendation for Award) for each of these awards under Title 10, U. S. Code, section 1130, and that those requests must be referred to the Secretary of the Army from a Member of Congress.  There is no evidence that the applicant did so; therefore, his current request for award of the Air Medal and the Bronze Star Medal will not be discussed further in these proceedings.

3.  The applicant's military records show that he enlisted in the Regular Army on 17 April 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 29 February 1968 to 2 November 1968. He was then reassigned to Fort Bragg, North Carolina.  He then served in Germany from 29 May 1969 to 31 December 1969.  He began serving another tour in Vietnam on 11 February 1970.  However, he was returned to the continental United States on 12 March 1970 as a patient assigned to the United States Naval Hospital, Great Lakes, Illinois.  On 29 June 1970, he was honorably 
discharged due to physical disability with severance pay.  His DD Form 214, as amended by a DD Form 215 (Correction of DD Form 214) shows that he was awarded the Purple Heart, the National Defense Service Medal, the Vietnam 
Service Medal with four bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle, Pistol, and Machinegun Bars.

4.  The applicant requested that he be awarded a second Purple Heart.  The applicant provided Headquarters, 93rd Evacuation Hospital, General Orders Number 204, dated 27 July 1968, which awarded him the Purple Heart for wounds received in action on 26 July 1968.  Item 40 (Wounds) of his DA Form 20 contains entries which show that the applicant was wounded by shrapnel in his left thigh on 27 March 1968, and also sustained gunshot wounds to his ankle, shoulder and back on 26 July 1968.  However, there are no orders in his military records which show that he was awarded a second Purple Heart for being wounded on 27 March 1968.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce orders awarding him the Purple Heart for being wounded on 27 March 1968.  Additionally, there is not an entry on the Vietnam Casualty Roster which corroborates the statement in item 40 of his DA Form 20 that he was wounded on 27 March 1968. 

5.  The applicant provided an SF 600 which appears to be initially dated 9 March 1968, but the copy of this document in the applicant's military records is actually initially dated 29 March 1968.  This document shows that he was treated for a shrapnel wound to his left thigh on 29 March 1968.  However, this document does not state whether the shrapnel wound was caused by enemy action.

6.  The applicant also requested that he be awarded the Army Commendation Medal.  However, item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 and his DD Form 215 do not show that he was awarded the Army Commendation Medal.  The applicant signed item 32 (Signature of Person Being Transferred or Discharged) of his DD Form 214, attesting to the accuracy of the information contained on that form.  Item 41 (Awards and Decorations) of his DA Form 20 also does not show that he was awarded the Army Commendation Medal.  There are also no general orders in the applicant’s military records which show that he was awarded the Army Commendation Medal.

7.  The applicant also requested, in effect, that he be awarded the Basic Aviation Badge and that he completed over 200 hours of combat flight time while serving as a Door Gunner with Companies A and B, 1st Aviation Battalion, 1st Infantry Division from May 1968 to September 1968.  However, there is no evidence in the 
applicant's military records which show that he served as a Door Gunner for not 
less than 12 months, or that he was school trained as a Door Gunner or another position which also authorized the award of the Aircraft Crew Member Badge at the time.

8.  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.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  Army Regulation 600-8-22 also 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 Purple Heart.

9.  Army Regulation 600-8-22 further provides, in pertinent part, 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.

10.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards), in effect at the time, provided guidelines for award of the Aircraft Crew Member Badge.  This regulation, in pertinent part, provided that the commander of any Army unit which has assigned Army aircraft may publish orders authorizing qualified personnel of their command to wear the Aircraft Crew Member Badge.  An individual must be on flying status as a crew member in the case of crew chiefs 
and flight engineers or as non-crew member in the case of observers, medical aid 
men, gunners, aircraft maintenance supervisors, and technical inspectors.  The individual must be physically qualified (Class III Flight) and be qualified for and hold a principal duty assignment as a crew chief, flight engineer, aircraft maintenance supervisor, observer, gunner, or technical inspector.  An individual 


who has performed in one of the duties specified above, for not less than 
12 months (emphasis added), or is school trained for a principal duty contained above, will be authorized to wear the Aircraft Crew Member Badge permanently.

11.  Army Regulation 600-200 (Enlisted Personnel Management), chapter 9, of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in Item 40 (Wounds) of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in Item 40. 

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that awards and decorations for all periods of service in the priority sequence specified in Army Regulation
600-8-22 will be entered on the DD Form 214.  Each entry will be verified by the Soldier’s records.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

14.  Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded a second Purple Heart, the Army Commendation Medal, and the Basic Aviation Badge.

2.  The SF 600 provided by the applicant, which was also part of his military records, was carefully considered, as was the entry on his DA Form 20 which shows that he received a shrapnel wound to his left thigh on 27 March 1968.  As a 
result of clear and compelling evidence that shows he was wounded and subsequently treated by medical personnel for such wounds that were sustained in action against the enemy in March 1968, and that this medical treatment was made a matter of official record (i.e., SF 600 and DA Form 20 entries), there is sufficient basis for awarding him a second Purple Heart in this case.

3.  All awards of the Army Commendation Medal must be announced in official orders, which the applicant did not provide, and are not in his military records.  As a result, there is no basis for correcting his military records to show the award of the Army Commendation Medal.  While the available evidence is insufficient for awarding the applicant the Army Commendation Medal, this in no way affects the applicant’s right to pursue his claim for the Army Commendation Medal by submitting a request through his/her Member of Congress under the provisions of 10 USC 1130.  

4.  While it is apparent that the applicant flew as a Door Gunner while he was in Vietnam, there is no evidence in his military records, and the applicant failed to provide evidence which shows that he served as a Door Gunner for not less than 12 months, or that he was school trained as a Door Gunner or another position which also authorized the award of the Aircraft Crew Member Badge at the time.  In view of the foregoing, there is no basis for awarding him the Basic Aviation Badge in this case.

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:

   
   a.  awarding the applicant the Purple Heart for wounds received in action on
27 March 1968;
   
   b.  deleting from Item 24 of the applicant's 29 June 1970 DD Form 214 the entry "NA"; and
   
   c.  adding to Item 24 of the applicant's 29 June 1970 DD Form 214 the Purple Heart (first oak leaf cluster), National Defense Service Medal, Vietnam Service Medal, and the Combat Infantryman Badge.
   
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 Army Commendation Medal and Basic Aviation Badge.




      _________XXX_____________
               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)                                         AR20080004049



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004049



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1