IN THE CASE OF:	

		BOARD DATE:	  2 December 2008

		DOCKET NUMBER:  AR20080011601 


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 that his separation document (DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 January 1970 be corrected.  He requests that item 6 (Date of Rank), item 23a (Specialty, Number and Title), and item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) be corrected.  In addition, he requests award of a second Purple Heart (in effect, a Purple Heart with Oak Leaf Cluster).

2.  The applicant states that the spelling in item 6 should be "Feb" not "Fev."  In item 23a it should read 11B4O Infantryman Squad Leader not "71H4O Record Team Leader."  In item 24 it should read Expert Marksmanship Qualification Badge not "EXP/QUAL/BAD," Silver Star not "ST STAR," Good Conduct Medal not "GOOD CON BAD," and Purple Heart not "PV HAR."

3.  He states that he recently retired from the U.S. Army with 34 years of active and reserve duty.  He was told by the Department of Veterans Affairs representative to get his DD Form 214 corrected.  He states that he would like to have the errors corrected to avoid unnecessary delays during the processing of his claim for benefits.

4.  He continues that he would like to have a Purple Heart with Oak Leaf Cluster for wounds he received in a military operation on 12 May 1969.  His wounds were attended to by a clerk from Headquarters and Headquarters Company, 196th Light Infantry Brigade at Landing Zone (LZ) Baldy.  The wounds were overlooked and not reported to the aid station at LZ Baldy.  He states that he received the first wound in the left side of his neck area by a small piece of shrapnel and the second wound in the right arm and upper muscle area by a bayonet during hand-to-hand combat.  He states that a captain and a first sergeant were awarded the Silver Star for wounds they received during the same engagement.

5.  The applicant provides a copy of his DD Form 214 for the period ending 16 January 1970; a statement dated 22 June 2008; an electronic mail (email) statement in reference to Vietnam dated 24 June 2008; Headquarters, Americal Division, General Orders Number 488 dated 6 January 1968; General Orders Number 518 dated 20 January 1969; Special Orders Number 58 dated 27 February 1969; Special Orders Number 59 dated 28 February 1969; and Special Orders Number 156 dated 5 June 1969.

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 personnel record shows he was inducted into the Army of the United States on 17 January 1968.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  He served continuously until he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training), St. Louis, Missouri, on 16 January 1970.  He completed 2 years of active service.

4.  The DD Form 214 that the applicant submitted shows the entry "17 Fev 69" in item 6.  However, Special Orders Number 58 dated 27 February 1969 show the applicant was promoted to sergeant (SGT) pay grade E-5 effective 18 February 1969.

5.  The DD Form 214 that the applicant submitted shows the entry "71H4O Record Team leader" in item 23a.  However, Special Orders Number 59 dated 28 February 1969 show the applicant was awarded the primary MOS 11B4O (Infantryman).

6.  The DD Form 214 that the applicant submitted shows the entry "EXP/QUAL/BAD ST STAR/Good CON BAD/PV HAR" in item 24.  General Orders Number 518 dated 20 January 1969 show that the applicant was awarded the Purple Heart for wounds he received in connection with military operations against a hostile force on 1 December 1968.

7.  Also, General Orders Number 488 dated 6 January 1969 show that the applicant was awarded the Silver Star for gallantry in action against a hostile force on 17 November 1968.

8.  The email statement that the applicant submitted basically states that the applicant was serving as an infantryman with Headquarters Company, 196th Infantry Brigade, when the applicant had discussed with a clerk the events in May 1969 in which forces from North Vietnam attacked their fire base LZ Baldy.  The email further states that the clerk applied first aid by using salve and gauze to the applicant's shrapnel wounds which the clerk recalled was located at the applicant's neck.  The clerk did not recall if the applicant went to the aid station at LZ Baldy for further treatment.  The clerk states that he was not involved in the fighting because he was in the orderly room handling incoming messages.

9.  The applicant's medical record does not contain any evidence of the applicant being treated for a second wound sustained by hostile force on 12 May 1969.

10.  There are no special or general orders or a DA Form 20 (Enlisted Qualification Record) in the applicant's official personnel records to verify the other abbreviated awards he requested to be corrected that are listed in item 24, nor did the applicant submit any evidence to substantiate correction for those abbreviated awards (EXP/QUAL/BAD and GOOD CON BAD).

11.  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.  It further states that an Oak Leaf Cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 6, item 23a, and item 24 of his DD Form 214 for the period ending 16 January 1970 should be corrected.  He also contends that he should be awarded the Purple Heart with Oak Leaf Cluster.

2.  Special Orders Number 58 dated 27 February 1969 show the applicant was promoted to SGT/E-5 effective 18 February 1969.  Therefore, he is entitled to correction of his records to show 18 February 1969 in item 6 of his DD Form 214.

3.  Special Orders Number 59 dated 28 February 1969 show the applicant was awarded the primary MOS 11B4O.  Therefore, he is entitled to correction of his records to show 11B4O Light Weapons Infantryman in item 23a of his DD Form 214.

4.  General Orders Number 518 dated 20 January 1969 show that the applicant was awarded the Purple Heart for wounds he received in connection with military operations against a hostile force on 1 December 1968.  Therefore, he is entitled to correction to his records to show the award of the Purple Heart in item 24 of his DD Form 214.

5.  General Orders Number 488 dated 6 January 1969 show that the applicant was awarded the Silver Star for gallantry in action against a hostile force on  
17 November 1968.  Therefore, he is entitled to correction to his records to show the award of the Silver Star in item 24 of his DD Form 214.

6.  Concerning the abbreviated awards (EXP/QUAL/BAD and GOOD CON BAD), there is no special or general orders or a DA Form 20 to substantiate making a correction to those abbreviated awards listed in item 24 of the applicant's DD Form 214.  Therefore, the abbreviated awards (EXP/QUAL/BAD and GOOD CON BAD) will remain the same in item 24 of his DD Form 214.

7.  The email statement submitted by the applicant was noted.  However, there is no record of the applicant's medical treatment.  As such, there is insufficient evidence to award the Purple Heart with Oak Leaf Cluster for wounds sustained on 12 May 1969.



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 showing in item 6, 17 February 1969; in item 23a, 11B4O Infantryman; and in item 24, by adding the Silver Star and Purple Heart to his DD Form 214 for the period ending 16 January 1970.

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 the Purple Heart with Oak Leaf Cluster, "EXP/QUAL/BAD," and "GOOD CON BAD."



      __________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)                                         AR20080011601



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ABCMR Record of Proceedings (cont)                                         AR20080011601



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