IN THE CASE OF:	  

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20080010318 


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 reconsideration of the denied portion of his earlier case by adding the second award of the Air Medal to his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge).  He also requests, in effect, original consideration of his withdrawn request for award of the Purple Heart.

2.  The applicant states that he was presented two Air Medals for different time periods and almost qualified for a third one.  He notes that although the certificates and citations for both have the same start date, the time periods are different in that the end dates differ by 6 months.  He thinks the overlapping dates were a simple mistake.

3.  The applicant continues by stating that, although there may be some question as to the date he sustained the injury to his hand, it is pretty clear when it happened because he was wounded when Lieutenant Colonel T____ took command of Fire Support Base (FSB) Mary Ann on 28 March 1971.

4.  The applicant provides copies of two Air Medal certificates and citations and two snapshots of himself with notes on the back.

5.  The applicant had previously submitted supporting documents for his request for the Purple Heart.  Since copies of those documents were attached to the original case, even though the request for the Purple Heart was withdrawn, they will be described in detail below.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005035 on 8 May 2008.

2.  Applicant's counsel withdrew the original request for the Purple Heart on 1 May 2008 and reserved the right to resubmit that request in the future.

3.  The original Record of Proceedings noted that his military records were not available.  The review consisted primarily of analysis of the documents submitted by the applicant and a review of the information in the Awards and Decorations Computer Assisted Retrieval System (ADCARS) database.

4.  As a result of the previous review, the Board recommended and the Secretarial Authority directed correction of his records by:

	a.  awarding him the Army Good Conduct Medal (1st Award);

	b.  voiding his existing DD Form 214 and two DD Forms 215; and 

	c.  issuing him a new DD Form 214 showing:

		(1)  his military occupational specialty (MOS) as 11B2O (Light Weapons Infantryman);

		(2)  he was awarded the Bronze Star Medal, Air Medal, Army Commendation Medal with Oak Leaf Cluster, Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

5.  The Discussion and Conclusions portion of the original Record of Proceedings noted, "The applicant provided two copies of Air Medal Certificates to support his request for the Air Medal with Oak Leaf Cluster.  Unfortunately, one of the Air Medal Certificates is illegible and neither certificate is accompanied by orders upon which the requested correction could be made."  The Board determined that there was insufficient evidence to substantiate the applicant's entitlement to a second award of the Air Medal.

6.  The applicant's official records are now available and show the following documentation.

	a.  He enlisted in the Regular Army on 28 May 1970 for a period of 2 years and extended his enlistment for 1 year for guaranteed training in MOS 11B/C and Special Forces.  He was later determined to be physically unqualified for field duties and was re-trained as a clerk in MOS 70A.

	b.  The applicant arrived in Vietnam on 15 January 1971 and was assigned to the 23rd Infantry Division Administrative Replacement Detachment.

	c.  He was reassigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 46th Infantry, 196th Light Infantry Brigade, on 12 February 1971 in duty MOS 11F as an intelligence specialist.

	d.  General Orders Number 5982 issued by Headquarters, 23rd Infantry Division, on 29 May 1971 awarded the applicant the Air Medal for meritorious service while participating in aerial flight during the period from 10 February 1971 to 17 May 1971.

	e.  The National Archives at College Park, Maryland, in a 21 May 2008 letter to a Member of Congress, wrote that a search of the records of the 196th Light Infantry Brigade had located "General Order Number 27 in 1972, when one Air Medal was awarded."  A copy of that order was not attached to the file copy of the letter.

	f.  A 15 August 1971 DA Form 2496-1 (Disposition Form) from the applicant to the Commanding Officer, HHC, 1st Battalion, 46th Infantry, requested that he be granted a secondary MOS of 11F (Infantry Operations and Intelligence Specialist) based upon 6 months of on-the-job training.

	g.  A 14 September 1971 copy of a DA Form 2496-1 "Letter of Acceptance" from the Commanding Officer, D Troop, 1st Squadron, 1st Cavalry, stated that he had interviewed the applicant and that he would be accepted into the unit.

	h.  On 2 October 1971 the applicant submitted a "Waiver of Profile Limitations" in which he stated, "…I accept full responsibility for my actions by voluntarily going to the field with Reconnaissance Platoon of Company E, 1st Battalion, 46th Infantry, in a combat role.  I will hold no one responsible should I become wounded…"

	i.  On 16 October 1971 the applicant formally requested transfer to Troop D, 1st Squadron, 1st Cavalry, for duties as a gunner on light observation helicopters.  However, on that date the applicant was reassigned to Company E, 1st Battalion, 46th Infantry, 196th Light Infantry Brigade, in MOS 11F.

7.  The applicant submitted the following documents in support of his application for reconsideration of his request to show a second Air Medal:

	a.  a copy of an 18 December 1971 certificate and the citation for award of the Air Medal for the period 10 February 1971 to 17 May 1971 and

	b.  a copy of a 3 January 1972 certificate and the citation for award of the Air Medal for the period from 10 February 1971 through 20 November 1971.

8.  In support of his efforts to obtain award of the Purple Heart he had previously provided the following:

	a.  color copies of two snapshots of the applicant with a bandage across his nose and under his left eye and discoloration under his right eye;

	b.  copies of notes that he indicated he had he written on the back of those photographs when he sent them to his mother which stated, "They look pretty messy, but they're okay now" and "A few new holes and a little lost blood, but thankful to still have 2 eyes and 1 life"; and

	c.  a copy of a single-page letter to his parents, dated 5 September 1971, stating, "…Don’t worry, it isn't much.  I've got a few holes under my eyes and on my nose.  I'm lucky…"  The second page of another letter reads, in part, "shipped home a duffle bag today…it's got a Bronze Star, Purple Heart, and Air Medal in it…"

9.  Applicant's counsel, a legal assistance attorney at the Judge Advocate General's (JAG) Center and School, Charlottesville, Virginia, originally spelled out each of the applicant's specific requests, but subsequently withdrew the request for award of the Purple Heart.

10.  The original application had attached a lengthy letter from Thomas F. S___ who identified himself as the battalion assistant operations officer for air and previously a platoon leader with "Echo Recon" and briefly as Company D commander.  He described the general situation in the vicinity of Chu Lai, Republic of Vietnam, and the specific situation at FSB Mary Ann and environs.  This individual also described the applicant and his service as follows.

	a.  The applicant had enlisted, volunteered for infantry duty, airborne school [he had, in fact, volunteered and extended his enlistment for Special Forces training], and for Vietnam.  He was injured and physically disqualified for field duty; after completing clerk-typist training he again volunteered for duty in Vietnam.

	b.  In Vietnam, "he began a concerted lobbying scheme to get to the bush."  He got assigned to battalion operations and requested duty at FSB Mary Ann.  He could have stayed at Mary Ann where he earned and was awarded MOS 11F as an operations and intelligence specialist, but he again volunteered, this time for duty at a more remote mini-FSB.

	c.  Then First Lieutenant S____ states that he had personally observed the applicant and knew him to be an outstanding young Soldier who was conscientious and cooperative, he worked any assigned task and when he was done he would ask permission to go on defensive patrols and ambushes.  The applicant learned that the battalion's reconnaissance platoon, "E Recon," had Soldiers with MOS 11F attached and he again volunteered; he still had a chance to earn a Combat Infantryman Badge (CIB).

	d.  The applicant "still had a physical profile that precluded field duties"; he had to sign a written waiver accepting full responsibility for his actions by going to the field; he signed the waiver.  "He did serve in an infantry slot in a rifle battalion and he did come under enemy fire.  In fact, he received shrapnel wounds to his face from enemy small arms fire.  So, motivated young man that he was, he achieved his short-term military career goal!  He earned both his CIB and a Purple Heart."

11.  In the letter accompanying the original request the applicant related that his former battalion commander had asked his son, who was then the commander of the JAG School, to help.  The general had appointed a legal assistance attorney to help him.  The applicant noted that he had started in 2000 to get his records straight.  He sent everything he could think of to send.  He spoke with his former battalion commander and the lieutenant [First Lieutenant S____] that he worked for back then sent a letter, but that effort resulted only in the addition of another Army Commendation Medal.  He indicated that he was sending a copy of the lieutenant's letter along with the current application.

12.  The applicant mentioned the "legal" waiver he had been required to sign because of his physical profile and he questioned whether his medical records might have been lost because no one wanted to take the blame for his having been wounded.  He also wrote, "I could also get a letter from Lieutenant Colonel Clyde T____ who assumed command of the unit after FSB Mary Ann was overrun on 27-28 March 1971, and it was he who sent me back to get my hand looked at which had gotten infected after Mary Ann was hit and I chose to stay on the hill until we left it for good."

13.  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.

14.  The applicant's name does not appear on the Vietnam casualty roster and ADCARS contains no orders awarding the applicant any awards or decorations.

15.  Army Regulation 600-8-22 provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

16.  Numerous historical websites chronicle the 28 March 1971 sapper attack on FSB Mary Ann that resulted in casualties approximating 30 U.S. Soldiers killed and 80 wounded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was presented two Air Medals for different time periods.

2.  The applicant's records contain a copy of General Orders Number 5982 issued by Headquarters, 23rd Infantry Division, on 29 May 1971 awarding him the Air Medal for meritorious service while participating in aerial flight during the period 10 February 1971 and 17 May 1971.  The National Archives at College Park, Maryland, reports that a search of the records of the 196th Light Infantry Brigade located General Order Number 27 in 1972 awarding him an Air Medal.
   
3.  The referenced General Order Number 27 tends to correlate closely with the 3 January 1972 certificate and the citation for award of the Air Medal for the period 10 February 1971 through 20 November 1971.

4.  Notwithstanding the overlapping starting dates, the applicant was awarded two separate awards of the Air Medal and his records should be changed.

5.  Concerning the request for the Purple Heart, the applicant states that he was wounded in the hand on 28 March 1971.  Although the applicant seems to think otherwise, there is no available substantiating evidence to show that he was wounded on the hand.
6.  Then First Lieutenant S____ writes that he knows the applicant sustained fragment wounds to the face while in action against the enemy.  The photographs show injuries and a medical bandage, indicating that he was treated.  The applicant's letters to his parents further substantiate injuries to his face.  However, there is no record of medical treatment which is a regulatory requirement for award of the Purple Heart.

7.  Unfortunately, in the absence of an official record of medical treatment, there is an insufficient basis for granting the request for award of the Purple Heart.

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 amendment of the ABCMR’s decision in Docket Number AR20080005035, dated 8 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 to show he was awarded the Air Medal with Numeral 2.

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 awarding him the Purple Heart or listing it as an authorized award on his DD Form 214.



      _________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)                                         AR20080010318



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ABCMR Record of Proceedings (cont)                                         AR20080010318



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