IN THE CASE OF:	 

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080019337 


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 his awards of the Purple Heart and Bronze Star Medal.

2.  The applicant states, in effect, that he was wounded when an enemy bullet lodged in his cheek and is still there to this day.  He goes on to state that there may not be a record of the treatment; however, before he departed Vietnam he was given a Purple Heart and Bronze Star Medal.  Unfortunately, he was not given any paperwork to accompany the medals.  He goes on to state that he was wounded in the left cheek and that at the time the doctors were concerned about disfiguring his face and he told them to just pack it and leave it as it was.  He also states that he again went to the field with the dressing on and performed his duties as a squad leader.

3.  The applicant provides a three-page letter explaining his 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 was inducted into the Army of the United States in Los Angeles, California, on 4 October 1966.  He completed his basic training at Fort Ord, California, and was transferred to Fort Polk, Louisiana, to undergo his advanced individual training (AIT) as a light weapons infantryman.

3.  On 21 January 1967, while returning from pass in a taxi cab, the taxi was hit by an unidentified car from the rear and the applicant passed out from injuries received on the left side of the head.  The applicant was returned to duty on 23 January 1967.

4.  He successfully completed his AIT and was transferred to Fort Knox, Kentucky, where he attended an M-113 track drivers course for 3 weeks.  He successfully completed that training and was transferred to Vietnam on 11 April 1967.  He was assigned to Company C, 2nd Battalion, 28th Infantry Regiment, 1st Infantry Division, for duty as a rifleman.  He was advanced to the pay grade of E-4 on 15 August 1967 and to the pay grade of E-5 on 23 February 1968.

5.  He departed Vietnam on 10 April 1968 and was transferred to Fort Huachuca, Arizona, where he remained until he was honorably released from active duty (REFRAD) on 3 October 1968 due to the expiration of his term of service.  He had served 2 years of total active service and was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged from the USAR on 3 October 1972.

6.  The DD Form 214 issued to the applicant at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal, and the Good Conduct Medal.

7.  The applicant's military records do not show that he was awarded the Bronze Star Medal.  There are no orders in his military records which awarded him the Bronze Star Medal and a search of the U.S. Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, failed to produce any orders awarding him the Purple Heart or the Bronze Star Medal.
8.  A review of his records and the Vietnam casualty listing fails to show that the applicant was wounded as a result of enemy action or that he was awarded the Purple Heart.

9.  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 a medical officer, and the medical treatment must have been made a matter of official record.

10.  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.

11.  Title 10, 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.  While the sincerity of the applicant's claim to entitlement to awards of the Purple Heart and Bronze Star Medal is not questioned, all awards of the Purple Heart and the Bronze Star Medal must be announced in official orders which the applicant did not provide and are not in his military records.  Regrettably, absent orders which officially awarded him these medals, there is insufficient basis upon which to correct his military records to show the awards of the Purple Heart and the Bronze Star Medal.

2.  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.

3.  Therefore, in the absence of evidence to show that he was wounded as a result of enemy action and that treatment for that injury was made a matter of record, there is no basis to award him the Purple Heart at this time or to add that award to his records.

4.  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.

5.  In view of the forgoing, there appears to be no basis to grant the applicant's request.

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 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)                                         AR20080019337



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ABCMR Record of Proceedings (cont)                                         AR20080019337



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