IN THE CASE OF:	  

		BOARD DATE:	  	   23 April 2009

		DOCKET NUMBER:  AR20080019189 


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 records to show a second award of the Purple Heart and two awards of the Bronze Star Medal.

2.  The applicant states, in effect, he is not sure why, but the documents he provides were sent to him after he left Vietnam.  He also states that he was not aware of the error on his separation document until he applied to the Department of Veterans Affairs (VA) in June 2008 for veteran benefits.  The applicant concludes that he believes these were errors of omission; he would like his war record to accurately show the awards and decorations he earned while serving his country, and that the awards may have a bearing on his VA benefits.

3.  The applicant provides copies of two DA Forms 4980-5 (The Bronze Star Medal) Certificates, dated 28 December 1970 and 10 January 1971, with two Bronze Star Medal Citations; and DA Form 4980-10 (Purple Heart) Certificate, dated17 July 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 personnel records show he was inducted into the Army of the United States for a period of 2 years on 3 September 1969.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

     a.  Item 31 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 12 February 1970 through 6 April 1971.

     b.  Item 38 (Record of Assignments), in pertinent part, shows he served in Duty MOS 11B (Rifleman) while assigned to Company A, 4th Battalion,
21st Infantry Regiment, 11th Brigade (USARPAC, RVN) from 8 March 1970 through 1 April 1971.

     c.  Item 40 (Wounds) shows he sustained a fragment wound to his right leg on 30 June 1970.

     d.  Item 41 (Awards and Decorations) shows he was awarded the Purple Heart, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Expert Marksmanship Qualification Badge with
(M-16) Rifle Bar, Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar, and 2 Overseas Service Bars.

4.  The applicant’s military personnel records contain a copy of Headquarters, Americal Division (Vietnam), General Orders Number 8232, dated 5 July 1970, that show, in pertinent part, the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 30 June 1970.

5.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action other than for wounds he received on 30 June 1970.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing confirmed that the applicant’s name is listed once as having been wounded on 30 June 1970.
6.  There are no orders or other evidence in the applicant’s military personnel records showing he was awarded a second award of the Purple Heart.

7.  There are no orders or other evidence in the applicant’s military personnel records showing he was awarded the Bronze Star Medal.

8.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce any award orders pertaining to the applicant showing he was awarded the Bronze Star Medal during his service in the RVN.

9.  The applicant’s military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was inducted on 3 September 1969 and honorably released from active duty on
6 April 1971.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Purple Heart, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Expert Marksmanship Qualification Badge with (M-16) Rifle Bar, Sharpshooter Marksmanship Qualification Badge with
(M-14) Rifle Bar, and 2 Overseas Service Bars.  At the time of his separation the applicant had completed 1 year, 6 months, and 27 days of net active service this period and 1 year, 1 month, and 24 days of foreign service.

10.  In support of his application, the applicant provides the following documents.

     a.  DA Form 4980-10, dated 17 July 1970, that shows the applicant received the Purple Heart for wounds received in action in the RVN on 30 June 1970.

     b.  DA Form 4980-5, dated 28 December 1970, and a Bronze Star Medal Citation that show, in pertinent part, the applicant received the Bronze Star Medal for meritorious achievement in ground operations against hostile forces in the RVN from 1 July 1970 to 31 October 1970.

     c.  DA Form 4980-5, dated 10 January 1971, and a Bronze Star Medal Citation that show, in pertinent part, the applicant received the Bronze Star Medal for meritorious achievement in ground operations against hostile forces in the RVN from February 1970 to January 1971.

11.  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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

13.  Army Regulation 600-8-22 provides, in pertinent part, that the bronze oak leaf cluster is awarded to denote each succeeding award of certain decorations, among which are the Purple Heart and Bronze Star Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show a second award of the Purple Heart and two awards of the Bronze Star Medal because he received the award certificates and citations after he returned to the United States and the awards are not recorded on his DD Form 214.

2.  The evidence of record shows that the applicant sustained a fragment wound to his right leg on 30 June 1970, the wound required treatment by medical personnel, and the medical treatment was made a matter of official record.  The evidence of record also shows Headquarters, Americal Division (Vietnam), General Orders Number 8232, dated 5 July 1970, announced the applicant's award of the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 30 June 1970.  In this regard, the DA Form 4980-10, dated 17 July 1970, that the applicant provides supports the fact that he was wounded in action in the RVN on 30 June 1970.  Moreover, the applicant's DD Form 214 shows he was awarded the Purple Heart in this instance.

3.  The applicant provides no official documentary evidence pertaining to a wound or injury (e.g., battle casualty report, medical treatment records, etc.) in support of his request for a second award of the Purple Heart.  There is no evidence in the applicant’s military personnel records that shows he was wounded on two occasions as a result of hostile action; his DA Form 20 does not show two entries in item 40 or list a second award of the Purple Heart in item 41; the applicant's name is listed only once on The Adjutant General's Office Casualty Division's Vietnam Casualty Listing (i.e., for a wound sustained on
30 June 1970); and there are no orders in the applicant’s military personnel records that show he was awarded a second award of the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded a second time as a result of hostile action, that such wound required treatment by medical personnel, or that the medical treatment was made a matter of official record.  In view of all of the foregoing, there is insufficient basis for awarding a second Purple Heart to the applicant in this case. 

4.  The applicant provides copies of award certificates and citations that show he received the Bronze Star Medal for meritorious achievement in ground operations against hostile forces in the RVN from 1 July 1970 to 31 October 1970 and that he received a second Bronze Star Medal for meritorious achievement in ground operations against hostile forces in the RVN from February 1970 to January 1971.  However, there are no orders or other evidence in the applicant’s military personnel records that shows he was awarded the Bronze Star Medal.  Moreover, a thorough search of the USA HRC ADCARS failed to produce orders pertaining to any award of the Bronze Star Medal to the applicant.

5.  The sincerity of the applicant and authenticity of the documents provided in support of his claim are not in question.  However, the Bronze Star Medal certificates and citations alone are insufficient evidence to support correction of the applicant's records.  The Military Awards regulation is clear in that announcement of personal decorations in orders is required.  The evidence of record fails to satisfy this requirement.  Therefore, in view of the foregoing, there is insufficient evidence to support the applicant’s claim to the Bronze Star Medal and/or Bronze Star Medal with bronze oak leaf cluster in this case.

6.  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.

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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20080019189



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ABCMR Record of Proceedings (cont)                                         AR20080019189



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