IN THE CASE OF:	  

	BOARD DATE:	  15 January 2009

	DOCKET NUMBER:  AR20080015488


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 Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show all of his awards to include the Purple Heart and the Bronze Star Medal. 

2.  The applicant states, in effect, that he did not receive the Purple Heart or Bronze Star Medal prior to leaving the Republic of Vietnam. 

3.  The applicant provides no supporting documentation.

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.  On 5 March 1969, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 19 August 1969, the applicant was assigned duty as a grenadier with 
C Company, 3rd Infantry Battalion, 1st Infantry Regiment, 11th Infantry Brigade, in the Republic of Vietnam.

4.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that he departed the Republic of Vietnam on 31 July 1970 and returned to the United States for duty at Fort Hood, Texas.

5.  On 4 March 1971, the applicant was released from active duty.  He had attained the rank of private first class, pay grade E3 and had completed 2 years of creditable active duty.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Vietnam Campaign Medal [with "1960-" Device], Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart or the Bronze Star Medal. 

7.  The applicant’s name is not listed on the Vietnam Casualty Roster.

8.  Item 40 (Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) is blank.

9.  A 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 or the Bronze Star Medal.

10.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

11.  Item 38 of the applicant's DA Form 20 shows that his conduct and efficiency were excellent.  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 
12.  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 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. 

13.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following four campaign periods: the Vietnam Summer-Fall 1969; the Vietnam Winter-Spring 1970; the DA Sanctuary Counteroffensive; and the 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.  

14.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.  

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that 3rd Battalion, 1st Infantry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders Number 43, dated in 1972, for award of the Valorous Unit Award.  It also shows that the 3rd Battalion, 1st Infantry Regiment, during the time of the applicant’s assignment was cited in DAGO Number 42, dated in 1972, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 


16.  Army Regulation 600-8-22 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was awarded the Purple Heart and Bronze Star Medal.  He further implies that he may be entitled to additional awards not shown in his military records. 

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

3.  There is no evidence of record to show that the applicant was wounded as a result of enemy action, and no orders awarding the Purple Heart are available.  Item 40 of his DA Form 20 does not show he was wounded, and his name is not on the Vietnam Casualty Roster.  Regrettably, there is insufficient evidence on which to base correcting his records to show he was awarded the Purple Heart.

4.  The applicant’s records clearly show that he distinguished himself in the performance of his military service.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

5.  Records show that the applicant participated in four campaign periods during his service in the Republic of Vietnam.  Therefore, he is authorized two more bronze service stars to be affixed to his already awarded Vietnam Service Medal with two bronze service stars.

6.  The applicant’s unit was cited in general orders for award of the Valorous Unit Award.  Therefore, his records should be corrected to show that he received the Valorous Unit Award.

7.  The applicant’s unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.


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:

	a.  deleting the Vietnam Service Medal with two bronze stars from the individual's DD Form 214 issued on 4 March 1971; 

      b.  awarding him the Army Good Conduct Medal for the period from 
5 March 1969 to 4 March 1971; and
	
      c.  adding the following awards to his DD Form 214 issued on 4 March 1971:  the Valorous Unit Award with Oak Leaf Cluster, Army Good Conduct Medal, the Vietnam Service Medal with four bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 the Bronze Star 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080015488



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