IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080014418 


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, award of the Purple Heart (PH), Air Medal (AM), and Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, that he sustained a shrapnel wound to his head on 3 June 1969 while serving in the Republic of Vietnam (RVN).  He claims the unit medical corpsman (MEDIC) treated the wound which required stitches.  He further indicates the MEDIC asked him at the time if he wanted to be put in for the PH, but he responded that he did not.  He states that after the mission he regretted not accepting the application for the PH, which he now claims he is entitled to.  The applicant also states that he was told he was awarded both the AM and AGCM, but neither of these awards were presented to him or are reflected on his separation document.  He states that he is submitting conduct and efficiency ratings to support his request for the AGCM and his diary which notes a few of the many helicopter combat assault missions he participated in while serving in the RVN in support of his AM request.

3.  The applicant provides the following documents in support of his request:  self-authored statement; DD Form 214 (Armed Forces of the United States); diary extracts; map of major unit locations; 1st Endorsement (Conduct and Efficiency Ratings), dated 3 March 1971; and Veterans of Foreign Wars letter, dated 15 August 2008.


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 he enlisted in the Regular Army and entered active duty on 16 May 1969.  He successfully completed basic training at Fort Dix, New Jersey, and advanced individual training (AIT) at Fort McClellan, Alabama.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 19 January 1979 through 18 January 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A and Company B, 1st Battalion, 52d Infantry Regiment,198th Infantry Brigade, performing duties in MOS 11C as a mortarman and ammunition bearer and in MOS 71B as a clerk typist.  Item 38 also shows that he received no less than "excellent" conduct and efficiency ratings at each of his active duty assignments. Item 40 (Wounds) is blank.

4.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); Army Commendation Medal (ARCOM); RVN Campaign Medal (RVNCM) with Device (1960); Bronze Star Medal with 1st Oak Leaf Cluster (2d Award); Expert Marksmanship Qualification Badge with Rifle (M-16), Pistol, and 81mm Mortar Bars; and Sharpshooter Marksmanship Qualification with Rifle (M-14) Bar.  The PH and AM are not listed in item 41.

5.  The applicant’s Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded the applicant from receiving the AGCM.

6.  The applicant’s OMPF is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH or AM, and of any medical treatment records showing he was ever treated for a combat-related wound or injury while serving on active duty.

7.  On 16 November 1971, the applicant was honorably released from active duty (REFRAD) in the rank of sergeant.  The DD Form 214 he was issued at that time shows he completed a total of 2 years, 6 months, and 1 day of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  NDSM; RVNCM with Device 1960; VSM with 3 bronze service stars; CIB; ARCOM; and BSM 1st Oak Leaf Cluster (2nd Award).  The PH and AM were not included in the list of awards in item 24 and the applicant authenticated this document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

8.  The applicant provides extracts taken from his personal diary which appears to have been written during his service in the RVN and that contains details of his service performed between May and June 1970.  It includes the entry "I lost all kinds of hair when I split the top of my head open" on 3 June 1970; however, the entry does not indicate the circumstances surrounding how this injury was received.  There are no apparent entries related directly to award of the AM.

9.  In connection with the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Roster.  The roster did not contain an entry pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

11.  Paragraph 3-15 of the awards regulation contains guidance on the AM.  It states, in pertinent part, that it is awarded in time of war for heroism and/or for meritorious achievement or service while participating in aerial flight.

12.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided local USARV awards policy.  It also established guidelines for award of the AM in the RVN.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Combat missions were divided into three categories:  Category I (air assault and equally dangerous missions), Category II (support rendered a friendly force immediately before, during, or immediately following a combat operation), and Category III (support of friendly forces not connected with an immediate combat operation).

13.  Chapter 4 of the Army’s awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying 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, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  Department of the Army General Order Number 8, dated 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

15.  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's contention that he should be awarded the AGCM was carefully considered and found to have merit.  The applicant's record confirms he received no less than "excellent" conduct and efficiency ratings in all of his active duty assignments and his record is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 16 May 1969 to 16 November 1971 and to add this award to his record and separation document at this time.

2.  The evidence of record also confirms that based on his RVN service, the applicant is also entitled to the RVN Gallantry Cross with Palm Unit Citation which should also be added to his record and separation document at this time.

3.  The applicant’s contentions that he was wounded in action in the RVN and as a result is entitled to the PH and that he should be awarded the AM were also carefully considered.  However, there is insufficient evidence to support these claims.  By regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  In this case, the evidence of record provides no indication that the applicant was ever wounded in action while serving in the RVN or that shows he was ever recommended for or awarded the PH by proper authority while serving on active duty.

4.  In addition, item 40 of the applicant’s DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in item 41.  His OMPF is void of any orders or other documents indicating he was ever recommended for or awarded the PH by proper authority and there are no medical records on file that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.  Further, the PH is also not included in the list of awards contained in item 24 of his DD Form 214, which he authenticated with his signature on the date of his REFRAD, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent any evidence of record corroborating his claim of entitlement to the PH, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

5.  There is also insufficient evidence to support the applicant’s claim that he should be awarded the AM.  The evidence of record is void of any flight records documenting any flight service performed by the applicant while he was serving in the RVN and he has failed to provide any.  His record is also void of any indication that he was ever recommended for or awarded the AM by proper authority while serving on active duty.  As a result, absent flight records or orders awarding the AM, there is an insufficient evidentiary basis to support award of the AM in this case.

6.  Although there is insufficient evidence for the Board to award the AM, it is noted that the applicant has not yet exhausted all remedies available to him under the law in pursuing this matter.  By law, he may pursue his claim for the AM by submitting a request with an award recommendation and supporting evidence through a Member of Congress under the provisions of 10 USC 1130, an option he may still wish to pursue.

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 awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 16 May 1969 to 16 November 1971, by showing his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and by providing him a correction to his separation document that includes these awards.

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 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)                                         AR20080014418



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ABCMR Record of Proceedings (cont)                                         AR20080014418



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