IN THE CASE OF:	  

		BOARD DATE:	  4 September 2008

		DOCKET NUMBER:  AR20080010066 


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 his record be corrected to show his entitlement to the Distinguished Flying Cross (DFC), Purple Heart (PH); Air Medal (AM), 11th Oak Leaf Cluster (12th Award); Bronze Star Medal (BSM); Unit Citation; and Presidential Unit Citation (PUC).  

2.  The applicant states, in effect, that he was awarded the DFC and the AM, 11th Oak Leaf Cluster; however, these awards were never added to his separation document (DD Form 214).  He further states that he was wounded in action, but never received the PH.  He also claims he was supposed to be awarded the BSM for the battle of Hue, and signed a piece of paper stating he would receive this award based on surviving the battle.  He further indicated that he believes he was supposed to receive a unit citation and PUC from his unit.  He concludes by stating that he realizes he should have received many more medals, but because of some officers in his unit, they were destroyed, and he requests these injustices now be corrected.   

3.  The applicant provides the following documents in support of his application:  DFC Orders and Certificate; AM, 11th Oak Leaf Cluster Certificate; Chronological Record of Medical Care (SF 600); and DD Form 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.  The applicant's record shows he was inducted into the Army and entered active duty on 2 February 1967, and was trained in and awarded military occupational specialty (MOS) 67N (Single Rotor Turbine Helicopter Mechanic).  His Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 17 August 1967 through 12 December 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Troop C, 1st Squadron, 9th Cavalry Regiment, performing duties in MOS 67N as a helicopter mechanic and crew chief.  Item 38 also confirms he received "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and Item 41 (Awards and Decorations) does not include the PH.  Item 41 does shows he earned the following awards:  National Defense Service Medal (NDSM); RVN Campaign Medal with Device (1960); Vietnam Service Medal (VSM); Aircraft Crewmember Badge (ACB); AM; and BSM.  

3.  The applicant's Military Personnel Records Jacket (MPRJ) contains Headquarters, 1st Cavalry Division General Orders (GO) # 8889, dated 21 July 1968, which awarded the applicant the BSM for meritorious service during the period August 1967 to August 1968.  It also contains Headquarters, 1st Cavalry Division GO # 14606, dated 6 December 1968, which awarded the applicant the DFC for meritorious achievement on 28 November 1968; and Headquarters, 1st Cavalry Division GO # 14719, dated 9 December 1968, which awarded the applicant the AM, 1st through 11th Oak Leaf Cluster (12th Award) for the period 8 February through 2 December 1968.  The MPRJ is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any derogatory information or a unit commander disqualification that would have precluded the applicant from receiving the Army Good Conduct Medal (AGCM).

4.  On 14 December 1968, the applicant was honorably released from active duty after completing 1 year, 10 months, and 12 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued a the time shows he earned the following awards during his active duty tenure:  NDSM; BSM (BS sic); AM; VSM; RVNCM; ACB; Expert Marksmanship Qualification Badge with Rifle (M-16) Bar; Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar; and 2 Overseas Service Bars.  The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

5.  The applicant provides an SF 600 that shows he was treated for “frag[mentation] wound received from ABA, Crew Chief of Chopper.”  The treatment form does not indicate that the wound was received as a result of enemy action, or that the helicopter was engaged with enemy forces at the time of the wounding.  It further makes no reference to PH entitlement.  

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included in the list of casualties contained on this roster.   

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  Paragraph 2-8h provides a list of examples of injuries or wounds which clearly do not justify award of the PH, which includes accidental wounding not related to or caused by enemy action. 

8.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  A silver service star is issued in lieu of 5 bronze service stars to denote participation in 5 campaigns.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase III, Tet Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, and the Vietnam Counteroffensive Phase VI campaigns. 

9.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  
10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Squadron, 9th Cavalry Regiment) received the Valorous Unit Award (VUA) and RVN Gallantry Cross with Palm Unit Citation.  The unit was not awarded a PUC or any other unit award during the applicant's assignment tenure.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record and separation document should show his entitlement to the DFC, BSM, and AM 11th Oak Leaf Cluster was carefully considered and found to have merit.  The applicant's MPRJ contains official orders issued by the 1st Cavalry Division that awarded the applicant these awards.  Therefore, it would be appropriate to add them to his record and separation document at this time.  It is noted that the BSM is in fact included in Item 24 of his DD Form 214 and is listed with the abbreviation “BS,” which should be corrected.  

2.  The applicant's record also confirms that he received "Excellent" conduct and 
efficiency ratings at all of his active duty assignments.  Further, the record is void 
of derogatory information, or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM, for his qualifying period of honorable active duty service from 2 February 1967 through 14 December 1968.  His record also shows that based on his RVN service and campaign participation, he is entitled to the VUA, RVN Gallantry Cross with Palm Unit Citation, and 1 silver service star for wear on his VSM.  Therefore, it would also be appropriate to add these awards to his record and separation document at this time.  

3.  The applicant's contention that he should be awarded the PH was also carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  

4.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  Further, the PH is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his REFRAD.  

5.  In addition, the applicant's MPRJ is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Although the applicant provides an SF 600 that indicates he was treated for a fragmentation wound on 20 July 1968, this document, even though only partially legible, gives no indication that the helicopter was engaged with enemy forces at the time the wound was received, or that his wound was received as a result of enemy action.  The SF 600 make no mention of PH entitlement and given he was treated by military medical personnel, it is likely that had the wound been the result of enemy action, he would have been awarded the PH at the time.  It appears more probable that the wound in question was accidental and not received as a result of enemy action and therefore, it did not support award of the PH.  

6.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the applicant's fragmentation wound was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the PH 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 him the Army Good Conduct Medal, for his qualifying period of honorable active duty service from 2 February 1967 through 14 December 1968; 

	b.  amending Item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry "National Defense Service Medal; Distinguished Flying Cross; Bronze Star Medal; Air Medal, 11th Oak Leaf Cluster (12th Award); Army Good Conduct Medal; Vietnam Service Medal with 1 silver service star; Republic of Vietnam Campaign Medal with Device (1960); Valorous Unit Award; Republic of Vietnam Gallantry Cross with Palm Unit Citation; Aircraft Crewmember Badge; Expert Marksmanship Qualification Badge with Rifle (M-16) Bar; Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar; and 
2 Overseas Service Bars"; and 

	c.  providing him a correction to his separation document that includes these changes.  

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 and additional unit awards.



      ______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)                                         AR20080010066



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