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ARMY | BCMR | CY2008 | 20080010459
Original file (20080010459.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010459 


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 award of the Silver Star, the Purple Heart and the Soldier’s Medal.

2.  The applicant states that he believes that during combat on 21 November 1968, he and others were attacked and he was told that he would be receiving a Silver Star for his actions.  He states that in early December 1968, he was hit by a piece of shrapnel and that he should have been awarded the Purple Heart.  He states that he was told that he would also receive a Soldier’s Medal for his actions during combat on 21 November 1968.

3.  The applicant provides in support of his application, a self authored statement dated 15 June 2008; a statement from an individual who served with him dated 25 January 2005; a statement from an individual dated 22 September 2004; three documents, referred to as citations, signed by three individuals attesting to the events which led to his belief that he is entitled to be awarded the Silver Star, the Purple Heart and the Soldier’s Medal; and three self authored letters explaining the events which he believes entitled him to be awarded the Silver Star, the Purple Heart and the Soldier’s Medal. 

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.  On 20 March 1968, the applicant was inducted into the Army in St. Louis, Missouri.  He successfully completed his training as a medical specialist.  He was transferred to Vietnam on 2 August 1968.

3.  After he completed 11 months and 29 days of service in Vietnam, the applicant returned to the Continental United States on 28 August 1969.

4.  On 19 March 1970, the applicant was honorably released from active duty (REFRAD) at the expiration of his term of service.  The Report of Transfer or Discharge (DD Form 214) that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal w/2 Bronze Service Stars, the Vietnam Campaign Medal w/60 Device, the Army Commendation Medal w/”V” Device, the Vietnamese Unit Citation, and the Bronze Star Medal.

5.  On 22 November 2004, the applicant was furnished a Correction to DD Form 214 (DD Form 214) to delete the Vietnam Service w/2 Bronze Service Stars and the Bronze Star Medal, and the add the Bronze Star Medal w/1 Oak Leaf Cluster w/”V” Device, the Air Medal, the Combat Medical Badge, the Vietnam Service Medal w/4 Bronze Service Stars, the Republic of Vietnam Gallantry Cross w/Palm Unit Citation Badge, and the Expert Qualification Badge w/Rifle Bar.

6.  A review of the available records, to include the Vietnam Casualty Listing, does not indicate that the applicant was ever wounded as a result of enemy action while he was in the Army.  Further review of the available records does not show that orders were ever published awarding him the Silver Star, the Purple Heart or the Soldier’s Medal. 

7.  The applicant submitted in support of his application self authored statements and statements from for other individuals all attesting that the applicant should have received the Silver Star, the Purple Heart, and the Soldier’s Medal.



8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  Formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy. The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Awards of the Soldier’s Medal will not be made solely on the basis of having saved a life.  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.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

10.  Army Regulation 600-8-22 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.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s contentions have been noted.  The documents that he submitted in support of his application have also been noted.  However, none of these documents are sufficiently mitigating to warrant awarding the applicant the Silver Star, the Purple Heart or the Soldier’s Medal. 

3.  In accordance with the applicable regulation, to be awarded the Purple Heart, his wound must have been sustained as a result of hostile action; the wound must have required medical treatment; and that the treatment must have been made a matter of record when he was in the Army.  There is no evidence in the available record, which includes the Vietnam Casualty Listing that shows that he met the criteria for award of the Purple Heart.


4.  The same regulation provides that formal recommendation, approval through the chain of command and announcement in orders are required for award of the Silver Star and the Soldier’s Medal.  His official record does not contain a formal recommendation or orders for either of these two awards.  Therefore, he is not entitled to the Silver Star or the Soldier’s Medal.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        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)                                         AR20080010459





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ABCMR Record of Proceedings (cont)                                         AR20080010459



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