IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016854 


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 he be awarded the Purple Heart and the Bronze Star Medal.

2.  The applicant essentially states that he was wounded in action on 9 July 1969 when the vehicle he was in hit a mine.  He also contends that he was to receive the Purple Heart and the Bronze Star Medal due to this incident, but did not receive them.

3.  The applicant provides a DA Form 1594 (Daily Staff Journal or Duty Officer's Log) for Headquarters, 5th Battalion, 2d Artillery, which contained entries from 0700 hours to 0952 hours on 9 July 1969; a VA Form 21-4138 (Statement in Support of Claim), dated 22 July 2008; an electronic mail (e-mail) message, dated 14 February 2008, from a retired lieutenant colonel (LTC); a 
VA Form 21-4138, dated 23 July 2008, from a former Soldier from his unit in Vietnam; a roentgenological consultation, dated 3 March 1998; a magnetic resonance imaging (MRI) report, dated 31 January 2001; and a radiology report from an examination on 12 May 2008 in support of this 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 records show that he was inducted into the Army of the United States on 13 December 1967.  After completing basic and advanced individual training, he departed for the Republic of Vietnam on 4 June 1968 and was initially assigned to Headquarters Battery, 5th Battalion (Automatic Weapons) (Self Propelled), 2d Artillery.  As part of his in-processing into the battalion, he completed an election indicating that he wished to have his next-of-kin notified in the event he was lightly wounded while serving in Vietnam.  On 26 June 1968, he was reassigned to Battery D of the same battalion.  He returned to the continental United States on or about 15 July 1969 and was honorably released from active duty on 17 July 1969.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

3.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of this same document does not contain any entries showing that he was wounded in action.  There are no orders in his military records awarding him the Purple Heart and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Further, the applicant’s name is not shown on the Vietnam casualty roster.  Additionally, there is no evidence in his military records which shows that his next-of-kin were notified that he was wounded in action.

4.  The applicant's military records do not show that he was awarded the Bronze Star Medal.  There are also no orders in his military records which awarded him the Bronze Star Medal and an ADCARS search also failed to produce orders awarding him the Bronze Star Medal.

5.  The applicant provided a DA Form 1594 for Headquarters, 5th Battalion, 2d Artillery, which contained entries from 0700 hours to 0952 hours on 9 July 1969.  This document essentially shows that a vehicle hit a mine, and that the extent of injuries was not known at the time.  This document identified a Staff Sergeant (SSG) G____ (not the applicant) by name as being wounded in the incident, but no one else.

6.  The applicant also provided a VA Form 21-4138 and e-mail from a retired LTC, who essentially stated that he was the battery commander of Battery D, 5th Battalion, 2d Artillery, from 2 January 1969 to 27 August 1969.  He also states that the applicant was injured by a mine explosion when he was driving an M42 Duster in the performance of his duties in Vietnam.  He also stated that on or about 0930 hours on 9 July 1969, he was notified by radio that one of his M42 Dusters struck a mine, and that when he arrived at the scene approximately 20 minutes later, all of the crew members of the M42 Duster had been blown completely out of the vehicle.  He further indicated that an SSG G____ was awaiting medical evacuation, and that the applicant and another Soldier remained in a ditch opposite the burning M42 and covered their heads with the applicant's flack jacket.  He also submitted that as the applicant was the M42 driver and inside the driver's hatch, he was certain that he sustained extensive injuries when he was blown out of the driver's seat.  Additionally, he stated that once ammunition stopped exploding on the burning vehicle, the applicant and the other Soldier were able to move to the south, and that they were then medically evacuated, presumably to Long Binh.  In his e-mail, he indicated, in pertinent part, that he did not actually see who was injured or the extent of the injuries.  The applicant also provided a VA Form 21-4138 from the other Soldier who remained in a ditch with him.

7.  The applicant provided a roentgenological consultation, dated 3 March 1998, and highlighted a statement which essentially shows that sclerosis at the distal third of his left clavicle was suggestive of an old healed fracture.  He also provided an MRI report, dated 31 January 2001, and highlighted information which stated the MRI examination was limited due to artifacts arising from his back.  Additionally, he provided a radiology report from an examination on 12 May 2008, and highlighted findings which indicated that there was an artifact traversing the canal in the sagittal and medic sequence of his spine.

8.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors:  wound, injury or death must have been the result of enemy or hostile act, international terrorist attack, or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded to any person who distinguished himself or herself after 6 December 1941 by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  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 ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  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 contends that he should be awarded the Purple Heart and the Bronze Star Medal.

2.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  While the DA Form 1594 provided by the applicant essentially shows that a vehicle hit a mine, it did not indicate that the applicant was wounded, and only mentioned an SSG G____ by name.

4.  The evidence from the retired LTC was also considered.  However, the fact that he essentially stated that all of the crew members of the M42 Duster had been blown completely out of the vehicle appears to be speculation by him, as he did not witness the vehicle hitting the mine, and arrived at the scene 20 minutes after the mine explosion.  Also, the fact that he stated he was certain that the applicant sustained extensive injuries when he was blown out of the driver's seat is contradicted by his e-mail to the applicant, in which he stated that he did not actually see who was injured or the extent of the injuries.  As a result, the evidence from the retired LTC, which was prepared more than 38 years after the fact, appears to be retrospective thinking.

5.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which proves, by a preponderance of the evidence (emphasis added), that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries that were sustained as a result of hostile action, and that this medical treatment was made a matter of official record, regrettably, there is insufficient basis upon which to award him the Purple Heart in this case.

6.  While the applicant contends that he was to receive the Bronze Star Medal, there is no evidence which shows that his command in Vietnam ever recommended him for this award.  All awards of the Bronze Star Medal must be announced in official orders, which the applicant did not provide, and are not in his military records.  Absent orders which awarded him this medal, there is insufficient basis for awarding him the Bronze Star Medal in this case.  However, the applicant is advised that while the available evidence is insufficient for awarding him the Bronze Star Medal, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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.

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 the United States during the Vietnam War.  The applicant and all Americans should be proud of his service in arms.



      _________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)                                         AR20080016854



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ABCMR Record of Proceedings (cont)                                         AR20080016854



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