IN THE CASE OF:	

		BOARD DATE:	  10 February 2009 

		DOCKET NUMBER:  AR20080017469 


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 that his Purple Heart be added to his separation document, DD Form 214.

2.  The applicant states that his Purple Heart certificate verifies that he was awarded this decoration.

3.  The applicant provides his DD Form 214 and a Purple Heart certificate which shows that he was awarded the Purple Heart on 16 April 1970.

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 on 22 April 1969, was awarded the military occupational specialty of light weapons infantryman, served in Vietnam from 21 September 1969 to 16 September 1970, and was promoted to pay grade E-4.

3.  On 13 July 1970, General Orders Number 1123 were published which awarded the applicant the Bronze Star Medal with “V” Device for action on 
10 May 1970.  In that order, it was stated that "an enemy mortar round exploded near his position, which severely wounded him and another man."

4.  On 24 August 1970, General Orders Number 1527 were published which awarded the applicant the Bronze Star Medal with Oak Leaf Cluster (2nd award).

5.  The applicant's DA Form 20, Enlisted Qualification Record, Item 38, Record of Assignments, shows the applicant's conduct and efficiency were always rated as excellent.  Item 40, Wounds, has listed "L.W. FW to the right side 24Apr69" (lightly wounded, fragment wound to the right side on 24 April 1969).

6.  The applicant was honorably released from active duty at the expiration of his term of service on 21 April 1971.  The DD Form 214 he was issued shows he was awarded the National Defense Service Medal, Combat Infantryman Badge, Vietnam Campaign Medal with 1960 Device, Army Commendation Medal, Vietnam Service Medal with 3 bronze service stars, and the Bronze Star Medal with “V” Device.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the OMPF, the MPRJ, the Career Management Individual File, and Army Personnel Qualification Records.  In pertinent part, this regulation states that for U.S. military decorations the only acceptable source documentation is the order, letter, or memorandum which awards the decoration.  Award certificates, citations, or separation certificates alone will not be the basis for entry of a decoration.

8.  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 for awarding the applicant the Purple Heart.





9.  The applicant is not listed on the Vietnam Casualty Roster.  

10.  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.  

11.  Army Regulation 672-5-1 (Military Awards), 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 was each 3 years except in those cases when the period for the first award ended 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.  

12.  Department of the Army General Order Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  In accordance with Army Regulation 600-8-104, the applicant's Purple Heart certificate is insufficient to warrant correcting his DD Form 214 to add this decoration.  As such, the applicant's Purple Heart certificate, with no corroborating evidence, is insufficient in determining whether the applicant is entitled to the Purple Heart for wounds incurred as a result of hostile action on  16 April 1970.

2.  While the applicant's DA Form 20, Item 38, shows the applicant was lightly wounded by a fragment wound to the right side, this entry states that the wound occurred on 24 April 1969.  This was two days after the applicant was inducted.  As such, the date of wound listed on the DA Form 20, 24 April 1969, is obviously in error.

3.  However, the applicant's Bronze Star Medal with “V” Device orders show that he was wounded in action on 10 May 1970.  The fact that the applicant's valorous decoration order states that the applicant was wounded while 

performing the valorous act for which he was being recognized is considered irrefutable evidence that he was in fact wounded by hostile forces.  Since the applicant's Bronze Star Medal with "V" Device is being accepted as verification that the applicant was wounded as a result of hostile action, the date of wounding listed on that order, 10 May 1970, is also accepted.  Therefore, it would now be appropriate to add the Purple Heart to the applicant's DD Form 214 for wounds he incurred on 10 May 1970.

4.  The applicant's DD Form 214 only shows that he was awarded one Bronze Star Medal.  However, orders confirm he was awarded two Bronze Star Medals.  As such, it would be appropriate to correct the applicant's records to show he was awarded the Bronze Star Medal with “V” Device, First Oak Leaf Cluster.

5.  There is no evidence the applicant received the first award of the Army Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Army Good Conduct Medal.  Records do not show indiscipline or lost time.  His records do not contain any adverse information and he received conduct and efficiency ratings of “excellent” throughout his service.  As such, it would appear that the applicant should have been awarded the Army Good Conduct Medal and it would now be appropriate to add this award.

6.  Based on the applicant's service in Vietnam, he is also entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was awarded: the Purple Heart for wounds incurred in Vietnam on 
10 May 1970; the Bronze Star Medal with “V” Device, First Oak Leaf Cluster; the Army Good Conduct Medal for the period 22 April 1969 to 21 April 1971; and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




      _______ _  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)                                         AR20080017469



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ABCMR Record of Proceedings (cont)                                         AR20080017469



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