IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080006098 


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, correction of his records to show 2 awards of the Purple Heart and the Bronze Star Medal with ”V” Device.

2.  The applicant states, in effect, that he should have been awarded 2 Purple Hearts for wounds he received in combat in the Republic of Vietnam, as well as the Bronze Star Medal with “V” Device.  He also states that while engaged in heavy combat in March of 1969 on Hill 187, he was hit in the lower left leg by shrapnel from a claymore mine.  However, the wound was not life threatening, so he continued to fight and never received any medical care at a medical facility.  He adds that in July 1969, he was bayoneted in his right foot and transported by helicopter to an Army hospital in DaNang to receive medical care.

3.  The applicant provides a self-authored letter, dated 14 July 2008; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 9 July 1970; Headquarters, Company D, 2nd Battalion,
1st Infantry, 196th Infantry Brigade, Americal Division, letter, dated 19 November 1969, subject:  Letter of Recommendation; letter from Mr. Darryl M_____, dated
7 March 2008; 2 letters from First Lieutenant (1LT) Michael E. H______, U.S. Army, Retired (USA Ret.), dated 26 January 2008 and 1 undated; Hibbing Daily Tribune, newspaper article, Range vet gets Purple Hearts - Former commanding officer pays forward, dated 11 July 2008; Department of Veterans Affairs (VA), St. Paul Regional Office, St. Paul, Minnesota, VA File Number 27 5## 3##, Rating Decision, dated 31 January 2008; and VA Form 10-2577F (Security Prescription Form), dated 4 February 2008.

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 service records show he was inducted into the Army of the United States on 10 July 1968.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows he served overseas in U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from
13 December 1968 through 12 December 1969.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to 23rd Administration Company, Replacement Detachment (USARPAC RVN), from 16 December 1968 through 26 December 1968, with principal duty as a student at the Americal Combat Center.  He was then assigned to Company D, 2nd Battalion,
1st Infantry Regiment, 196th Infantry Brigade (USARPAC RVN), from
27 December 1968 through 9 December 1969, with principal duty in MOS 11B as a gunner and team leader.  Item 39 (Campaigns) of this document shows the applicant participated in the Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and an (as then) unnamed campaign.  Item 40 (Wounds) is absent an entry.  Item 41 (Awards and Decorations) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with “1960” Device, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with (M-14) Rifle Bar, and 2 Overseas Service Bars.  This item also contains the entry “BSM Rec To Be Fwd To CONUS” (i.e., Bronze Star Medal recommendation to be forwarded to the continental United States).

4.  The applicant’s military service records contain a DD Form 214, with an effective date of 9 July 1970.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Bronze Star Medal, National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with “1960” Device, and Combat Infantryman Badge.  The
DD Form 214 also shows the applicant was honorably released from active duty on 9 July 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training), U.S. Army Administration Center, St. Louis, Missouri.  At the time, he was credited with completing 2 years, 0 months, and 0 days net service this period; 2 years, 0 months, and 0 days total active service; and 1 year, 0 months, and 0 days foreign service.

5.  There are no orders in the applicant’s military service records that show he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.

6.  There are no orders in the applicant’s military service records that show he was awarded the Bronze Star Medal with “V” Device.  In addition, his DA Form 20 does not show an entry for the Bronze Star Medal with “V” Device in Item 41 (Awards and Decorations).

7.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS), for the Vietnam Conflict failed to produce any award orders for the Purple Heart or Bronze Star Medal with “V” Device pertaining to the applicant during the period of his service in the RVN.

8.  In support of his application, the applicant provides the following documents.

     a.   A self-authored statement, dated 14 July 2008, and DD Form 214, with an effective date of 9 July 1970.  These documents were previously introduced and considered in this Record of Proceedings.
 
     b.  Headquarters, Company D, 2nd Battalion, 1st Infantry, 196th Infantry Brigade, Americal Division, letter, dated 19 November 1969, subject:  Letter of Recommendation.  This document shows that the captain serving as Commander, Company D, 2nd Battalion, 1st Infantry, 196th Infantry Brigade, Americal Division (RVN), confirmed the applicant served in the RVN for
12 months as a rifleman, fire team leader, and mortar man and had been involved in numerous contact missions with enemy forces.  The bottom portion of the letter contains a section that was added-on and identified as “Military:” that covers the period July 1968 through July 1970.  This entry shows, in pertinent part, the applicant was awarded the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with “1960” Device, and Combat Infantryman Badge.

     c.  A letter from Mr. Darryl M_____, dated 7 March 2008, who states he was in the same platoon as the applicant  and, on 19 March 1969, while assaulting Hill 187 near Tien Phouc (RVN), the applicant was wounded by schrapnel in his left leg.  Mr. M_____ states, “I was an eyewitness of battle and said shrapnel wound.”

     d.  Two letters from 1LT Michael E. H______ (USA Ret.), dated 26 January 2008 and 1 undated.  1LT H_______ was the applicant’s platoon leader for an unspecified period of time while serving in the RVN.

         (1)  In the 26 January 2008 notarized letter, 1LT H______ describes
2 particular actions the applicant was involved in while serving in the RVN (1 of which 1LT H______ stated he was an eyewitness to).  In pertinent part, 1LT H______ describes an action that took place on 19 March 1969 on Hill 187 in the RVN in which he states, “I put [the applicant] in charge of two squads.  Then looked down to see a round, white, shrapnel filled Chi-Com claymore.  As I turned to signal the men to stay down and get back it exploded.  Several of us were injured including [the applicant].”  He also describes an incident that occurred in early July 1969 when he was performing duties with the battalion’s
S-3 Air, when they landed in a very hot landing zone to assist with the medical evacuation of casualties.  In pertinent part, he states, “[The applicant] was helped on also with a bayonet wound to the foot.  I know all these men had been in close combat with the enemy.  I believe [the applicant] should have been given his
2nd Purple Heart at that time.”  1LT H______ further states that the applicant should have been awarded the Bronze Star Medal with “V” Device for his actions on 19 March 1969.

         (2)  In the undated letter, 1LT H______ states that the applicant served as his platoon sergeant while in the RVN.  1LT H_______ states, “I must vehimently (sic) insist on your ‘personnel’ records be correct as to follow…Sgt Ronald B_______ [Applicant’s Service Number] was never issued his Bronze Star with “V” Device and not some how (and I know how) been awarded 2 (two) separate Purple Hearts.”  1LT H______ adds, “[a]nd my wittness (sic) of the events and injuries incurred; therefore I am awarding him these awards myself at my own personal rites accourding (sic) to the U.M.C.J. (sic).”

     e.  Hibbing Daily Tribune, newspaper article, Range vet gets Purple Hearts - Former commanding officer pays forward, dated 11 July 2008.  The newspaper article states that 1LT H______ visited Veterans of Foreign Wars (VFW) Post 8510, where he described 2 particular actions the applicant was involved in while serving in the RVN (1 of which 1LT H______ stated he was eyewitness to), and 1LT H______ presented the applicant 2 of the 3 Purple Hearts that he was awarded for wounds he had received in action in the RVN.

     f.  Department of VA, St. Paul Regional Office, St. Paul, Minnesota, VA File Number 27 5## 3##, Rating Decision, dated 31 January 2008.  This document, in pertinent part, shows that the VA’s evaluation of the applicant’s post traumatic stress disorder with alcohol dependence, which was 50 percent disabling, was increased to 100 percent, effective 21 December 2006.”

     g.  VA Form 10-2577F (Security Prescription Form), dated 4 February 2008, that contains, in pertinent part, the entry “Lower scar from shrapnel while in Vietnam 1969, scar measures 1 ½” x ½”.”

9.  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 required treatment, 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.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

11.  Army Regulation 600-8-22, in pertinent part, provides that a Purple Heart is authorized for the first wound suffered under conditions cited (i.e., in the Military Awards regulation), but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  This Army regulation also states that not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

12.  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, 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

13.  Army Regulation 600-8-22 provides, in pertinent part, that the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze “V” device in conjunction with awards of the Bronze Star Medal, Air Medal, and Army Commendation Medal.

13.  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 a 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 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, in effect, that his records should be corrected to show 2 awards of the Purple Heart for wounds he received in action on 19 March 1969 and in early July 1969 and the Bronze Star Medal with “V” Device for his actions on 19 March 1969 in the RVN.

2.  There is no evidence in the applicant’s military service records that shows he was awarded the Purple Heart.  There also is no medical evidence in his records that shows he was wounded or treated for wounds as a result of hostile action on either 19 March 1969 or in early July 1969.  In addition, the applicant's name is not listed on the Headquarters, Department of the Army, The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.  Therefore, in view of the foregoing facts, notwithstanding the witness statements provided, there is insufficient documentary evidence to support the applicant’s claims to award of the Purple Heart in this case.

3.  There are no orders in the applicant’s military service records that show he was awarded the Bronze Star Medal with “V” Device and his DA Form 20 does not show an entry for the Bronze Star Medal with “V” Device in Item 41 (Awards and Decorations).  In addition, there is no evidence that a recommendation for award of the Bronze Star Medal with “V” Device was submitted into military channels for consideration by the applicant’s chain of command.  Therefore, there is insufficient evidence to support the applicant’s claim to the Bronze Star Medal with “V” Device.

4.  The sincerity and authenticity of the comments in the writings provided in support of the applicant’s claims are not in question.  However, this collection of documentary evidence (i.e., letters provided by his former platoon leader and a former Soldier who served with the applicant) that were produced some 39 years after the alleged occurrences, provides insufficient evidence upon which to base award of the Purple Heart, Purple Heart (1st Oak Leaf Cluster), or Bronze Star Medal with “V” Device.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

6.  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.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X__  ____X___  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   _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)                                         AR20080006098



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ABCMR Record of Proceedings (cont)                                         AR20080006098



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