IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006870 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of 2 Purple Hearts, the Bronze Star Medal (BSM), and any other awards to which he is entitled.

2.  The applicant states, in effect, that he was issued 2 Purple Hearts and the BSM out in the field and they were not recorded on his DD Form 214.  He contends that a clerical error was made. 

3.  The applicant provides copies of his DD Forms 214.

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.  After prior service in the Army National Guard, the applicant served in the Regular Army from 20 January 1966 through 4 November 1972.  The applicant's official records covering his period of active duty were not available for review.  Attempts were made to obtain his official records from the National Archives and Records Administration but to no avail.

3.  The applicant's DD Form 214 shows that he served in the Republic of Vietnam (RVN) from 9 April 1968 through 2 December 1969.  He received the Army Commendation Medal (2nd Award), the Army Good Conduct Medal, the Vietnam Service Medal, the Armed Forces Expeditionary Medal, the Vietnam Cross of Gallantry, and the Vietnam Campaign Medal with Device (1960).

4.  Item 24 of the applicant’s DD Form 214 does not show award of any Purple Hearts or the BSM.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not record any wounds sustained as a result of hostile action.

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

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  

8.  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 BSM orders on file for the applicant.

9.  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 medical personnel, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the BSM 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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's official record was not available for review.  Attempts were made to obtain his official records from the National Archives and Records Administration but to no avail.  

2.  There are no general orders and the applicant has not provided a copy of any orders showing he was awarded the Purple Heart.  There is no evidence in his available service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  A research of ADCARS failed to reveal any Purple Heart or BSM orders on the applicant.  At a minimum, if he had been wounded as a result of hostile action or treated for his wounds, his name would appear on the Vietnam Casualty Roster, and it does not.  

3.  The applicant has not provided any medical evidence that he was wounded or injured as a result of hostile action.  He only contends that "he was issued 
2 Purple Hearts in the field"; however, he provides no description of his injuries, the circumstances of how he was wounded or injured, or the dates of his alleged injuries.

4.  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.    Regrettably, the applicant's contentions alone do not provide sufficient evidence to show he was wounded or injured as a result of hostile action.  Therefore, there is no basis to grant award of the Purple Heart. 

5.  There are also no general orders and the applicant has not provided a copy of any orders showing he was awarded the BSM.  A research of ADCARS failed to reveal any BSM orders on the applicant.  As such, there is no basis upon which to grant the applicant's request to correct his record to show award of the BSM.

6.  While the available evidence is insufficient for awarding the applicant a BSM, this in no way affects the applicant’s right to pursue his claim for the BSM 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

__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.

2.  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
      
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)                                         AR20080006870



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ABCMR Record of Proceedings (cont)                                         AR20080006870



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