IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080014075 


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, correction of his record to show award of the Purple Heart, Bronze Star Medal, Air Medal, Overseas Service Bar, and any other awards or decorations to which he is entitled.

2.  The applicant states, in effect, that every Soldier assigned to his unit in the Republic of Vietnam was awarded the Air Medal, Bronze Star Medal, and Overseas Service Bar.  He further states that he should be awarded the Purple Heart based upon the fact that he sustained a shrapnel wound to his left arm during battle while serving in the Republic of Vietnam.  The applicant continues that he was separated on temporary records and administrative error resulted in the omission of these awards from his permanent record.  The applicant concludes that when he requested duplicate medals to provide to his son, the response from the National Personnel Records Center informed him that he was entitled to receive additional awards and decorations.

3.  The applicant provides a self-authored statement; a letter from the National Personnel Records Center; a portion of a note written by his mother; nine pages extracted from his Department of Veterans Affairs and civilian medical records; and four pages extracted from the American War Library's Internet web site which describe the criteria for award of the Purple Heart, Bronze Star Medal, and the Air Medal as additional documentary evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  Title 10, United States 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 record shows that he was inducted into the Army of the United States and entered active duty on 14 January 1969.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.  The applicant served a tour of duty in the Republic of Vietnam during the period 29 June 1969 through 12 July 1970. The applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training) effective 22 January 1971.

3.  Headquarters, 2d Basic Combat Training Brigade, United States Army Training Center, Fort Gordon, Georgia, Special Orders 43, dated 5 March 1969, awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar [M-16] effective 25 February 1969.

4.  Headquarters, United States Army Training Center, Infantry and Fort Polk, Fort Polk, Louisiana, Special Orders 101, dated 29 April 1969, awarded the applicant the Marksman Marksmanship Qualification Badge with Machinegun Bar [M-60] effective 24 April 1969.

5.  Headquarters, 25th Infantry Division, General Orders 4584, dated 26 April 1970, awarded the applicant the Army Commendation Medal for meritorious service in connection with military operations against a hostile force during the period of June 1969 to June 1970.

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tour of duty in the Republic of Vietnam, the applicant served in Company C, 2d Battalion of the 14th Infantry Regiment in the 25th Infantry Division from 7 July 1969 through 9 July 1970.
7.  The applicant's record contains a Standard Form 88 (Report of Medical Examination), dated 11 January 1971, which was completed in conjunction with the applicant's pre-separation medical examination.  Item 35 (Upper Extremities) in the Clinical Evaluation portion of this form indicates the applicant had no abnormalities in his arms.  Item 39 (Identifying Body Marks, Scars, Tattoos) of this form shows the applicant had no marks or scars on his body.  Item 74 (Summary of Defects and Diagnoses) of this form is blank.

8.  The applicant's record contains a Standard Form 89 (Report of Medical History), dated 11 January 1971, which was completed by the applicant in conjunction with his pre-separation medical examination.  Item 33 of this form shows the applicant indicated that he had never had any illness or injury other than those already noted on the form.  Item 34 of this form shows the applicant indicated that he had not consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years.  The applicant authenticated the accuracy of this document with his signature and it was authenticated by a physician on 13 January 1971.

9.  The applicant's record contains a Statement of Medical Condition, dated 22 January 1971, and signed by the applicant indicating that there had been no change in his health since his last separation examination.

10.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41 (Awards and Decorations) shows he was awarded or authorized to wear the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 41 of this form does not show award of the Purple Heart, Bronze Star Medal, Air Medal, or Overseas Service Bar.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 22 January 1971, shows he was awarded or authorized to wear the National Defense Service Medal, Combat Infantryman Badge, Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Campaign Medal with Device (1960).  Item 24 of this form does not show award of the Purple Heart, Bronze Star Medal, Air Medal, or Overseas Service Bar.  The applicant authenticated the administrative accuracy of this document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his release from active duty.

12.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 12 June 1995, corrected the applicant's DD Form 214, dated 22 January 1971, by adding the Army Commendation Medal to item 24 of the form.

13.  There is no indication in the applicant's available service personnel records or service medical record that he sustained a wound or injury during his period of service.  Additionally, the applicant's name does not appear on the Vietnam Casualty Roster.

14.  There are no indications in the applicant's service personnel records which show that he was awarded or recommended for receipt of the Purple Heart, Bronze Star Medal, or Air Medal.

15.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders awarding the applicant the Purple Heart, Bronze Star Medal, or Air Medal.

16.  The applicant's record contains a letter from the Director of Veterans Services at the United States Army Reserve Personnel Center, St. Louis, Missouri, dated 8 June 1995, which was prepared in response to an inquiry from a United States Senator.  The Director of Veterans Services, in pertinent part, informed the Senator that a review of applicant's military records revealed no evidence that he was awarded the Bronze Star Medal, Purple Heart, or Air Medal.  The Director of Veterans Services also informed the Senator of the specific criteria which must be met in order to qualify for award of the Purple Heart and stated the evidence provided by the applicant was not sufficient to support award of the Purple Heart.  The Director of Veterans Services concluded by recommending that the applicant provide the approximate date of his wound, the name of the treating facility, and the complete name of his unit of assignment at the time so a search could be made of the retired organizational and clinical records.  An attached memorandum for record shows that a search of the applicant's unit's Morning Reports also failed to reveal any evidence that he had been wounded.

17.  The applicant's record contains a letter from the Director of Veterans Services at the United States Army Reserve Personnel Center, dated 28 August 1995.  The Director of Veterans Services informed the applicant that a search was made of the retired organizational records of the unit to which he was assigned at the time he stated he was wounded.  The Director of Veterans Services informed the applicant that searches of the retired clinical records for the 25th Evacuation Hospital and the 12th Evacuation Hospital were also conducted.  The Director of Veterans Services concluded by informing the applicant that none of the aforementioned searches revealed any evidence that he had received treatment of a wound received in action against an enemy of the United States.

18.  The applicant provides a self-authored statement in which he states, in effect, that he served in combat in the Republic of Vietnam with the 2d Battalion of the 14th Infantry Regiment in the 25th Infantry Division from 29 June 1969 through 12 July 1970.  He continues that it was an Air Assault unit which was transported by helicopters into landing zones on a daily basis, occasionally as many as six or more times a day.  The applicant concludes that a review of his unit's records would verify everything he has stated in his request for relief.

19.  The applicant provides a letter from an Archives Technician at the National Personnel Records Center, dated 21 May 2008.  This letter was rendered in response to the applicant's request to be provided the awards and decorations to which he was entitled.  The Archives Technician, in effect, informed the applicant that based upon documents the applicant had provided and/or official documents, he would be shipped the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Automatic Rifle Bar, and the Marksman Marksmanship Qualification Badge with Machinegun Bar.  The Archives Technician also informed the applicant that he was authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation, but since it is a foreign award, it was not issued by the Department of the Army but may be purchased from civilian dealers in military insignia.  In closing, the Archives Technician informed the applicant that no record had been found to show that he was authorized any other medals.

20.  The applicant provides a portion of a note written by his mother and nine pages extracted from his Department of Veterans Affairs and civilian medical records which all essentially acknowledge the fact that he has a metal fragment in his left arm.  None of these documents provide any evidence of the circumstances which resulted in the metal fragment being imbedded in the applicant's arm.

21.  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.
22.  United States Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement, or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.

23.  United States Army Vietnam Regulation 672-1 provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.

24.  United States Army Vietnam Regulation 672-1 also provided, in pertinent part, that combat missions were divided into three categories.  A category I mission was defined as a mission performed in an assault role in which a hostile force was engaged and was characterized by delivery of ordnance against the hostile force or delivery of friendly troops or supplies into the immediate combat operations area.  A category II mission was characterized by support rendered a friendly force immediately before, during, or immediately following a combat operation.  A category III mission was characterized by support of friendly forces not connected with an immediate combat operation but which must have been accomplished at altitudes which made the aircraft at times vulnerable to small arms fire or under hazardous weather or terrain conditions.

25.  United States Army Vietnam Regulation 672-1 further provided that to be recommended for award of the Air Medal, an individual must have completed a minimum of 25 category I missions, 50 category II missions, or 100 category III missions.  Since various types of missions would have been completed in accumulating flight time toward award of an Air Medal for sustained operations, different computations would have had to be made to combine category I, II, and III flight time and adjust it to a common denominator.

26.  Army Regulation 670-1 (Uniforms and Insignia), in effect at the time, governed the requirements for the Overseas Service Bar.  In pertinent part, it provided that a bar was authorized for wear for each period of active Federal service as a member of the United States Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message.  There were special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars.  For Vietnam service, one Overseas Service Bar was authorized for each period of 6 months of active Federal service as a member of a United States Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam were counted as whole months for credit toward the Overseas Service Bar.

27.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This regulation shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during the period 1 September 1968 through 30 September 1970 by Department of the Army General Orders Number 5, dated 1973.

28.  Department of the Army Pamphlet 672-3 shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during the period 20 April 1966 through 21 January 1970 by Department of the Army General Orders Number 51, dated 1971.

29.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

30.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam. During the applicant's tour in Vietnam he participated in four campaigns:  the Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, Department of the Army Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

31.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show award of the Purple Heart, Bronze Star Medal, Air Medal, Overseas Service Bar, and any other awards or decorations to which he is entitled was carefully considered and determined to be with partial merit.

2.  Special orders awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar [M-16].  Therefore, he is entitled to have his records corrected to show receipt of this marksmanship qualification badge.

3.  Special orders awarded the applicant the Marksman Marksmanship Qualification Badge with Machinegun Bar [M-60].  Therefore, he is entitled to have his records corrected to show receipt of this marksmanship qualification badge.

4.  Evidence shows the applicant served overseas in the Republic of Vietnam for a period of 1 year and 14 days during the period of 29 June 1969 through 12 July 1970.  Army Regulation 670-1 provides that one Overseas Service Bar is authorized for each period of 6 months of active Federal service in the Republic of Vietnam from 1 July 1958 to 28 March 1973.  Although the applicant is authorized two Overseas Service Bars, the Overseas Service Bar is an item of uniform wear and not entered on the DD Form 214.

5.  General orders show the applicant was assigned to a unit that was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

6.  General orders show the applicant was assigned to a unit that was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

7.  Records show the applicant participated in four campaigns while serving in the Republic of Vietnam.  The record also shows the applicant was previously awarded the Vietnam Service Medal with three bronze service stars.  Therefore, he is entitled to award of one additional bronze service star to be affixed to his previously awarded Vietnam Service Medal.
8.  Although the applicant contends that he was wounded by shrapnel while serving in the Republic of Vietnam, there is no corroborating evidence present in the available records which shows the applicant was wounded as the result of hostile action, that the wound required treatment by military medical personnel, and the medical treatment was made a matter of official record.

9.  The applicant authenticated two documents acknowledging that he was in fair to good health and that he had not had any illnesses or injuries other than those annotated on his pre-separation medical examination forms.

10.  Although the applicant provided several documents indicating that he had a metal fragment in his left arm, they all fail to provide the circumstances or details surrounding how it got there.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in combat and who faced similar circumstances to grant the requested relief.

11.  The applicant's service personnel file is void of any evidence that the applicant was ever recommended for or awarded the Purple Heart, Bronze Star Medal, or Air Medal.

12.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  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 did not submit any evidence that would satisfy this requirement.  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.

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 adding the following awards:

	a.  the Expert Marksmanship Qualification Badge with Rifle Bar [M-16];

	b.  the Marksman Marksmanship Qualification Badge with Machinegun Bar [M-60];

	c.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation;

	d.  the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

	e.  one additional bronze service star (for a total of four bronze service stars) to be affixed to his previously awarded Vietnam Service Medal.

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 award of the Purple Heart, Bronze Star Medal, Overseas Service Bar, and Air Medal.



      ___________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)                                         AR20080014075





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ABCMR Record of Proceedings (cont)                                         AR20080014075



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