IN THE CASE OF:      

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080007173 


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 he be awarded the Purple Heart with one oak leaf cluster (1OLC) and that his two Army Commendation Medals (ARCOM) with “V” devices be added to his records. 

2.  The applicant states, in effect, that he was awarded the ARCOM with “V” Device for heroism on 8 January 1970 and 24 May 1970 and he was wounded in both instances.  However, he refused to be medically evacuated and the medic treated him in the field and no other action was taken.  He also states that he was not recommended for the Purple Heart at the time and he did not want one.  However, he desires to have both awards of the Purple Heart at this time and his two awards of the ARCOM with “V” device added to his records.    

3.  The applicant provides a power of attorney for the Department of Veterans Affairs (VA) to act as his representative, a copy of his DD Form 214, orders for his two awards of the ARCOM with “V” Device, statements regarding each instance in which he claims he was wounded, and a copy of his VA Rating Decision dated 17 April 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 was inducted in Louisville, Kentucky on 10 February 1969.  He completed his basic combat training at Fort Knox, Kentucky and was transferred to Fort Sill, Oklahoma to undergo his advanced individual training (AIT) as a cannoneer.

3.  He successfully completed his AIT and was transferred to Vietnam on 11 October 1969 for assignment to Battery B, 2nd Battalion, 77th Artillery Regiment, 25th Infantry Division.  He was advanced to the pay grade of E-3 on 17 October 1969.

4.  On 3 February 1970, General Orders Number 1240, published by Headquarters, 25th Infantry Division, awarded the applicant the ARCOM with “V” Device for heroism on 8 January 1970.

5.  The applicant was advanced to the pay grade of E-4 on 10 March 1970 and on 31 March 1970, orders were published that awarded the applicant the ARCOM with 1st OLC for meritorious service during the period of 1 February to 31 March 1970.

6.  On 16 July 1970, Generals Orders Number 7817, published by Headquarters, 25th Infantry Division, awarded the applicant the ARCOM with “V” Device with 2nd OLC for heroism on 24 May 1970.

7.  The applicant departed Vietnam on 12 October 1970 and was transferred to Oakland Army Base, California, where he was honorably released from active duty (REFRAD) as an overseas returnee.  He had served 1 year, 8 months, and 3 days of total active service and his DD Form 214 issued at the time of his REFRAD indicates that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal with Device (1960), the ARCOM, the Republic of Vietnam Civil Actions Medal – First Class Unit Citation, the Bronze Star Medal and the Good Conduct Medal.

8.  A review of the available records, as well as the Vietnam Casualty Listing and 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 failed to provide or show a copy of orders awarding the applicant the Purple Heart or reporting him as a casualty.

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 by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the pamphlet indicates that the applicant’s unit was subsequently awarded the  Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation during the period he was assigned to the unit.  Additionally, he participated in four campaigns while assigned to Vietnam and is entitled to be awarded four bronze service stars for wear on his already awarded VSM.
    
DISCUSSION AND CONCLUSIONS:

1.  The applicant clearly was awarded the three ARCOMs and is entitled to have his records corrected to reflect his award of the ARCOM with “V” Device and 2OLC.  

2.  While the sincerity of the applicant’s claim that he was wounded on 8 January and 24 May 1970 during the engagements for which he was awarded two ARCOMs with “V” Devices is not in doubt, there is simply no evidence of record to support his claim.   

3.  The criteria for award of the Purple Heart requires that an individual must be wounded as a result of enemy action, that the individual must be treated by medical personnel and that the treatment must be made a matter of record.  Therefore, in the absence of evidence to establish this criterion was met, there appears to be no basis to award him the Purple Heart at this time.

4.  However, the evidence of record does establish that the applicant is entitled to the award of the RVNGC w/Palm Unit Citation and four bronze service stars for wear on his already awarded VSM to denote his campaign participation. 


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 that the applicant was awarded the ARCOM with “V” Device and 2OLC (vice ARCOM as currently reflected) and by awarding him the RVNGC w/Palm Unit Citation and four bronze service stars for wear on his already awarded VSM.

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 with 1OLC. 

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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.
 

      ________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)                                         AR20080007173



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ABCMR Record of Proceedings (cont)                                         AR20080007173



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