IN THE CASE OF:	  

		BOARD DATE:	        9 September 2008

		DOCKET NUMBER:  AR20080010909 


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 correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 10 January 1975 to show award of the Purple Heart and the Silver Star. 

2.  The applicant states, in effect, that he was personally awarded the Purple Heart and the Silver Star on 2 January 1970 by General Abrams for a battle in Laos.  He also contends that he was treated by a medic for a leg wound. 

3.  The applicant provides a DD Form 214 (Report of Transfer or Discharge) for the period ending 10 January 1970 and a DD Form 214 (Report of Separation from Active Duty) for the period ending 10 January 1975.

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 into the Army of the United States on 24 March 1969.  He arrived in Vietnam on 10 September 1969.  On 10 January 1970, he was honorably discharged for immediate enlistment into the Regular Army.  

3.  The applicant’s DD Form 214 for the period ending 10 January 1970 does not show the Purple Heart or the Silver Star as authorized awards. 

4.  On 11 January 1970, the applicant enlisted into the Regular Army for a period of 3 years.  He departed Vietnam on 9 September 1970.  On 10 January 1975, he was released from active duty and transferred to the United States Army Reserve (USAR) Control Group (Standby).

5.  The applicant’s DD Form 214 for the period ending 10 January 1975 does not show the Purple Heart or the Silver Star as authorized awards.   

6.  There is no evidence in the available records which show that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

8.  On 19 November 1974, the applicant underwent a separation examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  Item 37 (Lower Extremities) on his Standard Form 88 (Report of Medical Examination) was rated normal.

9.  There are no orders for the Silver Star in the available records.

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

11.  Army Regulation 600-8-22 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.
12.  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.  There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam.  Regrettably, there is insufficient evidence on which to amend his DD Form 214 for the period ending 10 January 1975 to show award of the Purple Heart.

2.  There is no evidence of record which shows the applicant was awarded the Silver Star.  Therefore, there is insufficient evidence on which to amend his DD Form 214 for the period ending 10 January 1975 to show this medal.

3.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects the applicant’s right to pursue his  claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xx__  __xx____  _xx_____  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.



      ________xxxx__________
               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)                                         AR20080010909



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ABCMR Record of Proceedings (cont)                                         AR20080010909



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