IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080019008 


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 he be awarded the Purple Heart.  He also requests, in effect, that his military records be corrected to show the award of the Air Medal, Army Commendation Medal, Republic of Vietnam Campaign Medal with Device (1960), and two bronze service stars to be affixed to his Vietnam Service Medal; that he qualified as an expert on the M-60 Machinegun, the M-79 Grenade Launcher, and the .45 caliber Pistol; and that he was qualified in rappelling.

2.  The applicant states that he should have been awarded the Purple Heart because he was permanently injured while serving his country during wartime, and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) should be updated with the aforementioned awards and decorations.

3.  The applicant provides his DD Form 214; a letter, dated 21 April 2005, from the National Personnel Records Center (NPRC); and two letters, dated 11 July 2008 and 24 September 2008, from the Department of Veterans Affairs (DVA) 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 February 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 05B (Radio Operator).  After serving his initial permanent duty assignment at Fort Bragg, North Carolina, he departed for the Republic of Vietnam on
1 August 1969, and was briefly assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 501st Infantry Regiment, 101st Airborne Division.  On 28 August 1969, he was reassigned from HHC to Company C of the same battalion.  He returned to the continental United States on 2 February 1970 and was honorably released from active duty on that date.  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 Expert Marksmanship Qualification Badge with M-14 and M-16 Rifle Bars, the Vietnam Service Medal, and the Bronze Star Medal.

3.  The applicant provided two letters, dated 11 July 2008 and 24 September 2008, from the DVA which shows that he was awarded a 100 percent disability rating from the DVA effective 24 January 1966, and that he has existing service-connected disability(ies) rated at 100 percent.

4.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  There are no orders in his military records which awarded 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 orders awarding him the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries which show he sustained any wounds or injuries as a result of hostile action.  Item 41 (Awards and Decorations) of his DA Form 20 also does not contain an entry showing that he was awarded the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, his DA Form 1811 (Physical and Mental 

Status on Release from Active Service), dated 2 February 1970, shows that he was physically qualified for separation or for reenlistment without re-examination provided he reenlisted within 90 days.  This document also shows that the applicant only had a mild physical profile for his eyes, presumably for wearing eyeglasses, which he was wearing in his military identification card photograph taken at the Fort Dix, New Jersey Reception Station within a week of his entrance onto active duty.

5.  The applicant's DD Form 214 does not show that he was awarded the Air Medal.  There are no orders in his military records that awarded him the Air Medal, and an ADCARS query failed to produce orders awarding him the Air Medal.  The applicant provided a letter, dated 21 April 2005, from the National Personnel Records Center which in part verified his entitlement to award of the Air Medal, and his military records contained a certificate and citation which show that he was awarded the Air Medal for meritorious achievement while participating in aerial flight on 15 November 1969.

6.  The applicant's DD Form 214 does not show that he was awarded the Army Commendation Medal, but he was awarded this medal by Headquarters, 101st Airborne Division (Airmobile) General Orders Number 1591, dated 9 February 1970.  

7.  The applicant's DD Form 214 also does not show that he was awarded the Republic of Vietnam Campaign Medal with Device (1960), but he served in Vietnam from for 6 months and 3 days from 1 August 1969 to 2 February 1970.

8.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  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 it shows that during the applicant's tour in Vietnam, he participated in the Vietnam Summer-Fall 1969 (9 June 1969 – 31October 1969) and the Vietnam Winter-Spring 1970 (1 November 1969 – 30 April 1970) campaigns.

9.  The applicant requested that his DD Form 214 be corrected to show that he qualified as an expert with the M-60 Machinegun, the M-79 Grenade Launcher, and the .45 caliber Pistol, and that he was qualified in rappelling, but he did not provide evidence which shows that he qualified as an expert on these weapons 

or was qualified in rappelling.  There are no special orders in his military records which show that he qualified with the aforementioned weapons, and item 29 (Qualification in Arms) of his DA Form 20 does not contain any entries showing that he qualified with these weapons.  Item 27 (Military Education) and item 28 (Specialized Training) of this document also does not show that he completed a rappelling course.

10.  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.

11.  The applicant's military records do not show that he was awarded the Army Good Conduct Medal, but he served 1 year, 11 months, and 26 days of continuous enlisted active duty service from 7 February 1968 to 2 February 1970. All of his conduct and efficiency ratings were "excellent" throughout his active duty service, and there is no derogatory information in his military records which could be a disqualifying factor in awarding him the Army Good Conduct Medal.

12.  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 2nd Battalion, 501st Infantry 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 8, dated 1974; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 48, dated 1971.

13.  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 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 medical personnel; and the record of medical treatment must have been made a matter of official Army records.

14.  Army Regulation 600-8-22 also provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal with Device (1960).  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of 

the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces. 

15.  Army Regulation 672-5-1 (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 he should be awarded the Purple Heart.  He also contends that his military records should be corrected to show the award of the Air Medal, the Army Commendation Medal, the Republic of Vietnam Campaign Medal with Device (1960), two bronze service stars to be affixed to his Vietnam Service Medal; that he qualified as an expert on the M-60 Machinegun, the M-79 Grenade Launcher, and the .45 caliber Pistol; and that he was qualified in rappelling.

2.  The fact that the applicant provided evidence that he is rated 100 percent disabled by the DVA was noted.  However, the applicant provided no evidence which shows that his disability rating is the result of being wounded or injured as a result of hostile action.  Additionally, while the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries that resulted from hostile action, and that this medical treatment was made a matter of official record, there is no basis for awarding him the Purple Heart in this case.

3.  Although there are no orders in the applicant’s military records which officially awarded him the Air Medal, it is believed that the certificate and citation which show that he was awarded the Air Medal for meritorious achievement while 
participating in aerial flight on 15 November 1969 are authentic.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s military records to show this award.

4.  General orders awarded the applicant the Army Commendation Medal, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show this award.

5.  The applicant served more than 6 months in Vietnam during a qualifying period for award of the Republic of Vietnam Campaign Medal with Device (1960). Therefore, he is entitled to award of the Republic of Vietnam Campaign Medal with Device (1960) and correction of his military records to show this award.

6.  The applicant participated in two campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show the Vietnam Service Medal with two bronze service stars.

7.  There is no evidence in the applicant's military records which shows that he qualified as an expert with the M-60 Machinegun, the M-79 Grenade Launcher, or the .45 caliber Pistol; or that he was qualified in rappelling.  The applicant also failed to provide such evidence.  In view of the foregoing, there is no basis for correcting his military records to show that he qualified as an expert with these weapons, or that he was qualified in rappelling. 

8.  The applicant served 1 year, 11 months, and 26 days of continuous enlisted active duty service from 7 February 1968 to 2 February 1970, and all of his conduct and efficiency ratings were "excellent" throughout his active duty service. There is also no derogatory information in his military records which could be a disqualifying factor in awarding him the Army Good Conduct Medal.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 7 February 1969 to 2 February 1970 and to correct his military records to show this award.

9.  General orders awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 2nd Battalion, 501st Infantry 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 the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and correction of his military records to show these unit 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:

	a.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;
	
	b.  awarding him the Army Good Conduct Medal (first award) for the period from 7 February 1968 to 2 February 1970; and

	c.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal (first award), Army Commendation Medal, Air Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class 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:

	a.  awarding him the Purple Heart;

	b.  showing that he qualified as an expert with M-60 Machinegun, the M-79 Grenade Launcher, or the .45 caliber Pistol; or

   c.  showing that he was qualified in rappelling. 



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)                                         AR20080019008



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ABCMR Record of Proceedings (cont)                                         AR20080019008



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