IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080018521 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Purple Heart with first oak leaf cluster.

2.  The applicant essentially states that he received two Purple Hearts from the 2nd Battalion, 5th Cavalry Regiment, 1st Cavalry Division, with the second Purple Heart awarded 2 months after his first, but that they are not listed on his DD Form 214.

3.  The applicant provides the first page of orders, dated 4 November 1968, which awarded him the Purple Heart and his DD Form 214 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 7 December 1967.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 28 May 
1968 and served with Company E, 2nd Battalion, 5th Cavalry Regiment, 1st Cavalry Division.  He returned to the continental United States on 24 May 
1969, and served at Fort Benning, Georgia, until he was honorably released from active duty on 5 December 1969.  The DD Form 214 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 with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Second Class Gunner Marksmanship Qualification Badge with Machinegun Bar, the Combat Infantryman Badge, the Air Medal, and the Army Commendation Medal.

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart, but item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) shows that he was awarded the Purple Heart.  A search of the Vietnam casualty roster shows that he was wounded in action on 10 October 
1968 and item 40 (Wounds) of his DA Form 20 has a corresponding entry showing that he sustained fragmentation wounds to his left arm, chest, and head on that date.  The applicant provided orders, dated 4 November 1968, which show that he was awarded him the Purple Heart for being wounded in action on 10 October 1968 by Headquarters, 6th Convalescent Center.  His military records also contained orders, dated 12 October 1968, which show that he was previously awarded the Purple Heart for being wounded in action on 10 October 1968 by Headquarters, 1st Air Cavalry Division.  It should be noted that the Vietnam casualty roster only has one entry for the applicant being wounded in action on 10 October 1968.

4.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

5.  The applicant's DD Form 214 does not show that he was awarded the Bronze Star Medal, but he was awarded this medal for the period May 1968 to May 1969 by Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 4831, dated 19 April 1969.  It should be noted that in conjunction with awarding him the Bronze Star Medal for this period of service, the Army Commendation Medal shown on the applicant's DD Form 214, which was awarded by Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 4302, dated 8 April 
1969, for the period May 1968 to May 1969 was revoked by Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 4830, dated 19 April 
1969.

6.  The applicant's DD Form 214 does not show that he was awarded the Army Commendation Medal with "V" (for Valor) Device, but he was awarded the Army Commendation Medal with "V" Device by Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 6665, dated 29 May 1969, for heroism in connection with military operations against a hostile force on 10 April 1969.

7.  The applicant's DD Form 214 does not show that he was awarded the Army Good Conduct Medal, but his military records show that he served 1 year, 11 months, and 29 days of continuous enlisted active duty service from 7 December 1967 to 5 December 1969.  All of his conduct and efficiency ratings were "excellent" or unknown throughout his active duty service, and there is no derogatory information in his military records that could be a disqualifying factor in awarding him the Army Good Conduct Medal.

8.  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 2nd Battalion, 5th Cavalry Regiment, the battalion was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 59, dated 1969.

9.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with two bronze service stars to signify that he participated in two campaigns during his tour in Vietnam.  Paragraph 2-13 of Army Regulation 
600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns and shows that during the applicant's tour in Vietnam, he participated in the Vietnam Counteroffensive Phase IV campaign, the Vietnam Counteroffensive Phase V campaign, the Vietnam Counteroffensive Phase VI campaign, and the Tet 69 Counteroffensive campaign.

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.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.
11.  Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s active duty service, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the award of the Purple Heart with first oak leaf cluster.

2.  While two separate orders awarded the applicant the Purple Heart for being wounded in action on 10 October 1968, as there is only one entry for the applicant on the Vietnam casualty roster, it is clear that he was only wounded in action one time on that date and that a second order erroneously issued him the Purple Heart a second time.  As it is the policy of the ABCMR not to correct a record to reflect a change that will make the individual concerned worse off than before applying, the duplicate orders awarding him a second Purple Heart for being wounded in action on 10 October 1968 will not be revoked or removed from his military records.  However, based on the fact that he was only wounded in action once on 10 October 1968, he is not entitled to correction of his DD Form 214 to show the award of the Purple Heart with first oak leaf cluster, but he is entitled to correction of his DD Form 214 to show the award of the Purple Heart.

3.  General orders revoked the applicant's Army Commendation Medal for the period May 1968 to May 1969, and awarded him the Bronze Star Medal for the same period of service.  As a result, it would be appropriate at this time to correct the applicant's DD Form 214 to show the award of the Bronze Star Medal and remove the Army Commendation Medal.

4.  General orders also awarded the applicant the Army Commendation Medal with "V" Device, but this medal is not listed on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show the award of the Army Commendation Medal with "V" Device.

5.  The applicant served 1 year, 11 months, and 29 days of continuous enlisted active duty service from 7 December 1967 to 5 December 1969 and all of his conduct and efficiency ratings were "excellent" or unknown throughout his active duty service.  There is no derogatory information in his military records that could be a disqualifying factor in awarding him the Army Good Conduct Medal for this period of service.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 7 December 1967 to 5 December 
1969 and correct his military records to show this award.

6.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the 2nd Battalion, 5th Cavalry Regiment, while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and correction of his military records to show this unit award.

7.  The applicant participated in four campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show four bronze service stars to be affixed to his already-awarded Vietnam Service Medal instead of the two bronze service stars currently shown.

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.  awarding him the Army Good Conduct Medal for the period 7 December 
1967 to 5 December 1969;

	b.  removing the Army Commendation Medal;

	c.  adding the Bronze Star Medal, the Purple Heart, the Army Commendation Medal with "V" Device, the Army Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation to his DD Form 214; and

	d.  amending his DD Form 214 to show four bronze service stars to be affixed to his already-awarded Vietnam Service Medal instead of the two bronze service stars currently shown.

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 showing the award of the Purple Heart with first oak leaf cluster.

3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20080018521



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ABCMR Record of Proceedings (cont)                                         AR20080018521



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