IN THE CASE OF:	  

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080014887 


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 records to show award of the Purple Heart and his correct name.  He further requests that his records be corrected to show that he was sent on temporary duty (TDY) with the 173rd Engineer Company and that he receive his Vietnam campaign awards.   

2.  The applicant states, in effect, that in May 1967 or June 1967, while on a mission with the 173rd Engineer Company, the unit engaged in a firefight with enemy forces.  A rocket or mortar landed near his position and he felt pain in his left ear area.  The applicant states a day or so later he was examined by a medic and was told that his injury was only a scratch.  He did not probe to see if any foreign object was under his skin.  The applicant further states, "Later, pieces of metal began to come out from behind my ear.  An X-ray exam revealed metal behind my ear."

3.  The applicant states, in effect, that his records show his name as Joseph Guadalupe P_____ and that his real name is Joe Eugene P_____.  He concluded that his military records do not show the three campaigns he participated in while serving in Vietnam.

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with the period ending 30 October 1968; a letter from the Health Centers of Northern New Mexico, dated 6 February 2002; a letter of support from a former fellow Soldier, dated 29 March 2002; a New Mexico Department of Health Certificate of Birth, dated 23 August 2000; and an Operational Report - Lessons Learned for Quarterly Period 30 July 1967.
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 enlisted in the Regular Army on 30 October 1965 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 62G (Quarryman).  

3.  The applicant enlisted under the name Joe Gene P_____.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant’s name as Joe Gene P_____.  He signed the documents as Joe Gene P_____.  His DD Form 398 (Statement of Personal History) shows that the applicant wrote and signed his name as Joe Gene P_____.  Item 19 shows that the applicant wrote that he was adopted.

4.  The applicant’s entire service records show his name as Joe Gene P_____.  His signature on the documents shows he signed his name as Joe Gene P_____.   

5.  The applicant arrived in Vietnam with A Company, 815th Engineer Company on or about 24 March 1967.  He was reassigned to the 517th Engineer Company on or about 25 November 1967.

6.  There are no orders in the applicant's records that show while in Vietnam he was TDY with the 173rd Engineer Company.

7.  The applicant departed Vietnam on or about 23 March 1968 after participation in three campaigns.  On 30 October 1968, he was honorably released from active duty after completing 3 years of creditable active service.



8.  The applicant's DD Form 214 with the period ending 30 October 1968 shows he was awarded the National Defense Service Medal, the Army Good Conduct Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Expert Marksmanship Qualification Badge (M-16 Rifle), the Expert Marksmanship Qualification Badge (M-14 Rifle), and the Expert Marksmanship Qualification Badge (M-60 Machinegun).

9.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.  

10.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded, and item 41 (Awards and Decorations) does not show award of the Purple Heart. 

11.  The applicant's Army Medical Treatment Records are unavailable.

12.  The applicant provides a letter of support from a fellow Soldier, dated 
29 March 2002.  The author stated that he ran into the applicant while he was assigned to the 173rd Engineer Company.  The author recalled that during a conversation with the applicant that he complained that he had been hit by some shrapnel a few days before by a rocket or mortar that landed near where he was. 

13.  The applicant provided a copy of a New Mexico Department of Health Certificate of Birth, dated 23 August 2000.  This document shows the applicant’s name at birth as Joe Eugene Clarence T_______.

14.  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, and the medical treatment must have been made a matter of official record.  

15.  Army Regulation 600-8-22 also provides, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal to include the Vietnam Service Medal. 

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

17.  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 815th Engineer Battalion, it was cited for award of the Meritorious Unit Commendation for the period 27 March 1967 through 27 March 1968 based on Headquarters, Department of the Army General Orders Number 43, dated 1969.

18.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment to the 517th Engineer Company, it was cited for award of the Valorous Unit Award for the period 8 February 1968 through 15 September 1968 based on Headquarters, Department of the Army General Orders Number 53, dated 1970.

19.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U. S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U. S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action.  The witness statement submitted by a former fellow Soldier confirms that the applicant stated he was hit by shrapnel.  However, the former fellow Soldier did not mention that he was present at the time of the actual incident.

2.  In the absence of military records or other corroborating evidence which show the applicant was injured as a result of hostile action, there is an insufficient basis for award of the Purple Heart in this case.

3.  The applicant contends that his records show his name as Joseph Guadalupe P_____.  However, there is no evidence and the applicant has not provided evidence that shows Joseph Guadalupe P_____ is listed as his name in his military records.  The applicant provided a birth certificate that shows his name at birth as Joe Eugene Clarence T_______.  It appears that he was adopted and his name was changed to Joe Gene P_____.
4.  Although the applicant's name on his birth certificate shows his name as Joe Eugene Clarence T_______, he appropriately served in the Army and was discharged with the name Joe Gene P_____.  The applicant's records appear to be correct and to reflect his correct name.

5.  The applicant contends that his records should be corrected to show that he was sent TDY with the 173rd Engineer Company.  However, there is no proof to show he was TDY and there is no evidence such as morning report entries or completed travel vouchers in his records that show he served with the 173rd Engineer Company in Vietnam during his term of service.

6.  The applicant was assigned to the 815th Engineer Battalion during a period of time the unit was awarded Meritorious Unit Commendation.  He was assigned to the 517th Engineer Company during a period of time the unit was awarded the Valorous Unit Award.  His DD Form 214 should be amended to add these awards.

7.  Evidence of record confirms that the applicant served in Vietnam.  Therefore, he is eligible for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  His participation in three campaigns makes him eligible to wear three bronze service stars to be worn on his Vietnam Service Medal.  His DD Form 214 should be amended to add these awards.

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 amending his DD Form 214 with the period ending 30 October 1968 to add the Meritorious Unit Commendation, the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and three bronze service stars to be worn on his already-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 awarding the Purple Heart, correcting his name in his military records, and showing that he was TDY with the 173rd Engineer Company while in Vietnam.  




      _______ 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)                                         AR20080014887



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ABCMR Record of Proceedings (cont)                                         AR20080014887



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