IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080009480 


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 the Bronze Star Medal and the Purple Heart.  It should be noted that although he indicated that he is requesting reconsideration, this is his first application to the Army Board for Correction of Military Records (ABCMR) regarding award of the Bronze Star Medal and the Purple Heart.

2.  The applicant essentially states that he has a letter from his brother who was with him in Vietnam when the incident happened which attests to his actions and the wounds he received, and that he has scars to show for it.  He also states that it is a shame that he and his brother could be trusted to go to war and fight for their country, but still cannot be trusted to tell the truth about an incident of this nature.  He further states that he knows first-hand how records get lost because when he was sent home at the request of the Red Cross in 1969 when his other brother in the states was killed, he was separated on temporary records, and that his original records were never recovered.  He also states, in effect, that he cannot give the names of other Soldiers that were there at the time who witnessed his wounding except for his brother because it was not his unit, and the feeling then was that if you got too personal with others, they got killed, which affected how you did your job.

3.  The applicant provides an undated, self-authored letter and a letter, dated 
27 February 2007, allegedly from one of his brothers 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 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 records show that he enlisted in the Regular Army on 26 June 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 95B (Military Policeman).  He departed for the Republic of Vietnam on 2 December 1968, and served with the 188th Military Police Company.  He returned to the continental United States on 
4 September 1969, and was briefly assigned to Fort Carson, Colorado.  He then served in Vietnam from 6 January 1970 to 11 July 1971, and served with several military police units.  The applicant then began serving a tour in Germany in August 1971; however, he returned to the continental United States on 30 May 1972, and was honorably discharged for hardship on 21 June 1972.  

3.  On 5 February 1973, the applicant reenlisted in the Regular Army, and served on active duty until he was again honorably discharged on 21 June 1979.  On 
11 May 1994, he enlisted in the United States Army Reserve (USAR).  He was ordered to active duty on 20 September 1998 in support of Operation JOINT FORGE, and briefly served in Bosnia.  On 23 June 1999, he was honorably discharged from the USAR with disability service pay after a Physical Evaluation Board found him unfit due to mechanical low-back pain with chronic muscle spasms.

4.  The applicant's military records do not show that he was awarded the Bronze Star Medal.  There are also no orders in his military records which awarded him the Bronze Star Medal, and although 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, produced over 
80 general orders for Soldiers with the same first and last name as the applicant, none of these general orders pertained to the applicant.  

5.  The applicant's military records also do not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and an ADCARS search failed to produce any orders awarding him the Purple Heart.  The applicant's Standard Form 88 (Report of Medical Examination) and Standard Form 93 (Report of Medical History) that were prepared shortly before his hardship discharge in 1972, and after all of his service in Vietnam, failed to show that the applicant was wounded or injured as a result of hostile action.  Item 19 (Have you ever been a patient in any type of hospitals?) and item 20 (Have you ever had any illness or injury other than those already noted?) of the applicant's Standard Form 93 essentially show that the applicant answered both of these questions "No."  Additionally, there is no entry on the Vietnam Casualty Roster showing that the applicant was ever wounded in action.

6.  The applicant essentially stated that he has a letter from his brother who was with him in Vietnam when the incident happened which attests to his actions and the wounds he received, and that he has scars to show for it.  He also stated that it is a shame that he and his brother could be trusted to go to war and fight for their country, but still cannot be trusted to tell the truth about an incident of this nature.  He further stated that he knows first-hand how records get lost because when he was sent home at the request of the Red Cross in 1969 when his other brother in the states was killed, he was separated on temporary records, and that his original records were never recovered.  He also stated, in effect, that he cannot give the names of other Soldiers that were there at the time who witnessed his wounding except for his brother because it was not his unit, and the feeling then was that if you got too personal with others, they got killed, which affected how you did your job.

7.  The applicant provided a letter, dated 27 February 2007, which allegedly was prepared by one of his brothers.  This letter essentially stated that the applicant was visiting his brother who was assigned to Headquarters Company, 9th Infantry Division in Dong Tam, Vietnam in mid-January 1970.  This letter also stated that he and the applicant were eating in the mess hall when a mortar strike took place, and that several rounds struck the mess hall which caused damage and injuries.  This letter further stated that the applicant had shrapnel strike his right leg below the knee which caused a cut about 7 or 8 inches long.  Additionally, this letter stated that the applicant helped other Soldiers from under and around debris, and that he helped a couple of the new Soldiers out of harms way and to the sandbagged bunker, thereby saving them from further harm.  This letter also stated that the applicant was bleeding from his wound while exposing himself to further shrapnel while getting Soldiers to the bunker.  Further, this letter stated that the applicant was later treated by a company medic in the bunker, and was told that he would receive the Purple Heart and a medal for his actions; however, since the applicant was not in the 9th Infantry Division, the paperwork was either never sent to his unit, lost enroute, or just ignored by his unit personnel.  The author of this letter also stated, in pertinent part, that he knows that lots of records were lost and left behind in Vietnam, but that this is a matter that should not be overlooked any longer.  He added that the applicant earned the Bronze Star Medal and the Purple Heart, and that it would be an injustice to fail to see that they are awarded to him, and that his family would appreciate these medals now and not posthumously someday.  

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.

9.  Army Regulation 600-8-22 also 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 military 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 medical officials; and the records of medical treatment must have been made a matter of official Army records.

10.  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.

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 contends that he should be awarded the Bronze Star Medal and the Purple Heart.

2.  The evidence provided by the applicant, which included a letter allegedly from one of his brothers who was also in Vietnam and present when he was wounded and assisted moving Soldiers to a bunker in January 1970, was carefully considered.  However, this evidence is not corroborated by any information in the applicant's military records.  All awards of the Bronze Star Medal must be announced in official orders, which the applicant did not provide, and are not in his military records.  While the sincerity of the applicant's claim to entitlement to award of the Bronze Star Medal is not questioned, absent orders which officially awarded him this medal, there is insufficient basis upon which to correct his military records to show the award of the Bronze Star Medal.  However, the applicant is advised that while the available evidence is insufficient for awarding the applicant him the Bronze Star Medal, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  Additionally, while the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, there is no evidence in the available records, and the applicant failed to provide any evidence which conclusively shows that he was ever wounded or injured as a result of hostile action, that he was treated by medical personnel at the time for any wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record.  Additionally, the applicant's name is not shown on the Vietnam Casualty Roster.  The letter allegedly from one of the applicant's brothers was carefully considered, as was the contention that he was not awarded the Purple Heart because he was not assigned to the 9th Infantry Division at the time he was wounded in a company area for that division instead of his assigned unit.  However, if the applicant had been treated by medical personnel at the time, his wounding should have been reported through medical channels, and the fact that he was not with his assigned unit at the time of his alleged wounding should not have been an impediment to medical personnel reporting his casualty through medical channels.  As a result, the 27 February 2007 third-party letter does not begin to approach the threshold of proving, by a preponderance of the evidence, that the applicant was wounded in action in January 1970.  Additionally, the applicant's separation physical that was conducted shortly after the applicant completed his service in Vietnam fails to show that either the applicant or the medical doctor, who jointly prepared his Standard Form 93, indicated that the applicant was wounded or treated for any wounds in January 1970.  Regrettably, in view of the foregoing, there is insufficient basis upon which to award the applicant the Purple Heart in this case. 

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 the United States, and especially during the Vietnam War.  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)                                         AR20080009480



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ABCMR Record of Proceedings (cont)                                         AR20080009480



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