IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080011942 


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 his records be corrected to show the second award of the Purple Heart (referred to as First Oak Leaf Cluster) for wounds he received on 23 September 1968, and the Bronze Star Medal.

2.  The applicant states that his records should be corrected to show the Purple Heart (First Oak Leaf Cluster) and that he should receive the Bronze Star Medal for taking up a position on 23 September 1968.  His records were not previously corrected to show the awards due to the nature of the paperwork at that time, but his medical record shows he is entitled to the Purple Heart (First Oak Leaf Cluster).

3.  The applicant provides a copy of an extract from his health record; Headquarters, 9th Infantry Division General Orders Number 4878 dated 24 April 1969; two photographs displaying the two Purple Hearts and one Bronze Star Medal set; and a letter from his elected representative, dated 27 June 2008, in support of his 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 personnel record shows that he was inducted into the Army of the United States on 6 February 1968.  He completed the necessary training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  He served in the Republic of Vietnam during the period from 11 July 1968 through 10 July 1969.  He was honorably released from active duty on 5 February 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He completed 2 years of Net Service This Period.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Purple Heart.  However, it does not show the Purple Heart (First Oak Leaf Cluster) or the Bronze Star Medal.

5.  A Standard Form (SF) 600 (Chronological Record of Medical Care) extract from the applicant’s health record submitted by the applicant shows he was treated for a small fragment wound to his left forearm and for a foot problem at Aid Station #3147, on 23 September 1968.

6.  The two photographs submitted by the applicant shows a Certificate of Award for the second award of the Purple Heart, two engraved Purple Heart medals, and a Bronze Star Medal.

7.  Headquarters, 9th Infantry Division General Orders Number 4878 dated  
24 April 1969 shows the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 21 April 1969.

8.  A review of the Republic of Vietnam Casualty Files does not show the applicant's name listed among those wounded on 23 September 1968.



9.  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 injury was the result of hostile action, the injury must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  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.  

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 a Bronze Star Medal recommendation in the applicant’s record.  As such, there is no basis to award the applicant the Bronze Star Medal.

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

3.  Although, the applicant has submitted medical documentation to show he had a small fragment wound in his left forearm, dated 23 September 1968, there is no evidence to determine if the fragment wound was as a result of hostile action. Therefore, the evidence presented is insufficient to award the Purple Heart (First Oak Leaf Cluster).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to award the Purple Heart (First Oak Leaf Cluster) and Bronze Star Medal.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20080011942



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ABCMR Record of Proceedings (cont)                                         AR20080011942



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