IN THE CASE OF:	  

		BOARD DATE:	        19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080010994 


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 Purple Heart, and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Bronze Star Medal and the Army Commendation Medal with First Oak Leaf Cluster. 

2.  The applicant, in a telephone conversation with the Analyst for these proceedings on 30 January 2009, clarified that he should have been awarded the Purple Heart for an injury to his left finger and knuckle when they were smashed in a hitch while attempting to connect a quarter-ton utility vehicle to a three quarter-ton truck during an imminent mortar attack.  He also stated that he was awarded the Bronze Star Medal and two Army Commendation Medals, but that they are not listed on his DD Form 214.  It should be noted that the applicant's references to "N/A" (for Not Applicable) entries on his DD Form 214 were explained to him by the Analyst for these proceedings and, as a result, he no longer has an issue with "N/A" entries on his DD Form 214.  

3.  The applicant provides his DD Form 214 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 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 military records show that he was inducted into the Army of the United States on 23 October 1967.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 13A (Basic Field Artilleryman).  He departed for the Republic of Vietnam on 6 May 1968, and was initially assigned to Headquarters and Headquarters Battery, 2nd Battalion, 11th Artillery .  On 1 June 1968, he was reassigned to Battery B, 2nd Battalion, 11th Artillery.  He returned to the continental United States on emergency leave on or about 3 May 1969, and was honorably released from active duty on 3 June 1969.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant essentially requested that he be awarded the Purple Heart.  His DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and although a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, produced 
26 general orders for Soldiers with the same last name as the applicant, none of these orders pertained to him.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military records which shows that he was wounded or injured as a result of hostile action.

4.  The applicant also essentially requested that his DD Form 214 be corrected to show the award of the Bronze Star Medal and the Army Commendation Medal with First Oak Leaf Cluster.  His military records contained Headquarters, 101st Airborne Division General Orders Number 2581, dated 21 March 1969, which awarded him the Bronze Star Medal for the period 1 July 1968 to 28 February 1969.  They also contained Headquarters, 101st Airborne Division General Orders Number 3190, dated 9 April 1969, which awarded him the Army Commendation Medal for the period 1 October 1968 to 28 February 1969.  There are no additional orders in his military records awarding him a second Army Commendation Medal.

5.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

6.  The applicant served 1 year, 7 months, and 10 days of continuous enlisted active duty service from 23 October 1967 to 3 June 1969, but his military records do not show that he was awarded the Army Good Conduct Medal.  All of his conduct and efficiency ratings were "excellent" or unknown throughout his active duty service, and there is no derogatory information in his military records which could be a disqualifying factor in awarding him the Army Good Conduct Medal.

7.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in 
Vietnam.  This document shows that at the time of the applicant’s assignment to the 2nd Battalion, 11th Artillery, the battalion was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 43, dated 1970, and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation by Department of the Army General Orders Number 51, dated 1971.

8.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he participated in the Vietnam Counteroffensive Phase IV campaign, the Vietnam Counteroffensive Phase V campaign, the Vietnam Counteroffensive Phase VI campaign, and the Tet 69 Counteroffensive campaign. 

9.  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 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 military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

10.  This same regulation also provides, in pertinent part, that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  A bronze oak leaf cluster is awarded for subsequent awards.  
 
11.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

12.  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.

13.  Title 10 of the U.S. Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 Purple Heart, and that his DD Form 214 should be corrected to show the award of the Bronze Star Medal and the Army Commendation Medal with First Oak Leaf Cluster. 

2.  The applicant's request for award of the Purple Heart was carefully considered.  However, In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

3.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries that were sustained as a result of hostile action, and that this medical treatment was made a matter of official record, regrettably, there is insufficient basis upon which to award him the Purple Heart in this case.

4.  General orders awarded applicant the Bronze Star Medal and the Army Commendation Medal, but they are not listed on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show the award of the Bronze Star Medal and the Army Commendation Medal.  However, absent orders awarding him a second Army Commendation Medal, there is insufficient basis for correcting his military records to show a second award of the Army Commendation Medal.  The applicant is advised that this in no way affects his right to pursue his claim for the Army Commendation Medal with First Oak Leaf Cluster by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  The applicant served 1 year, 7 months, and 10 days of continuous enlisted active duty service from 23 October 1967 to 3 June 1969, and all of his conduct and efficiency ratings were "excellent" or unknown throughout his active duty service.  There is also no derogatory information in his military records which could be a disqualifying factor in awarding him the Army Good Conduct Medal for this period of service.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 23 October 1967 to 3 June 1969, and correct his military records to show the award of the Army Good Conduct Medal.

6.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation to the 2nd Battalion, 11th Artillery while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation, and correction of his military records to show these unit awards.

7.  The applicant participated in four campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show four bronze service stars to be affixed to his already awarded Vietnam Service Medal.

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.  showing the award of the Bronze Star Medal, the Army Commendation Medal, and four bronze service stars to be affixed to his already awarded Vietnam Service Medal; and

	b.  awarding him the Army Good Conduct Medal for the period 23 October 1967 to 3 June 1969 while serving as a specialist five, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation.

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:

	a.  awarding him the Purple Heart; and

	b.  showing the award of the Army Commendation Medal with First Oak Leaf Cluster.
3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080010994



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ABCMR Record of Proceedings (cont)                                         AR20080010994



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