DOCKET NUMBER:  AR20090000430 


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, award of the Silver Star (SS), and the Purple Heart (PH).  He also requests that those awards to include the Combat Infantryman Badge (CIB) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 
 
2.  The applicant states, in effect, that he earned these three awards and they should be added to his permanent file.  He contends that while in the hospital in the Republic of Vietnam (RVN), an Army general awarded him the PH.  He further contends he was told his SS was pending, but he never received it and finally he is enclosing CIB award orders to show he received this award.  

3.  The applicant provides CIB award orders in support of 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’s DA Form 20 (Enlisted Qualification Record) is not included with the Official Military Personnel File (OMPF) that was provided for the Board’s review.  

3.  The available records show the applicant was inducted into the Army of the United States and he entered an active duty status on 15 September 1966.  He was trained in and awarded military occupational specialty (MOC) 11C (Indirect Infantry Fire Crewman).  

4.  Orders contained in the applicant’s OMPF confirm that on 20 June 1967, he was removed from the United States Army Vietnam (USARV) Transient Detachment and he was further assigned to the 4th Infantry Division, effective
27 June 1967.  An available DA Form 137 (Installation Clearance Record) confirms the applicant was scheduled to depart his organization (Company E, 1st Battalion, 12th Infantry Regiment, 4th Infantry Division) and the Republic of Vietnam (RVN) on 11 June 1968.

5.  The applicant’s OMPF is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the PH or SS by proper authority while serving on active duty.  His OMPF is also void of any medical treatment records that show he was ever treated for a combat related wound or injury.  

6.  The applicant’s OMPF is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

7.  On 14 June 1968, the applicant was honorably released from active duty (REFRAD), in the rank of sergeant, after completing 1 year and 9 months of active military service.  The DD Form 214 he was issued on the date of his REFRAD shows he earned the following awards:  National Defense Service Medal (NDSM), RVN Campaign Medal (RVNCM) and Vietnam Service Medal (VSM).  The PH and SS are not included in the list of awards contained on the DD Form 214 and the applicant authenticated this document with his signature on the date of his REFRAD.   

8.  The applicant provides Headquarters, 4th Infantry Division Special Orders Number 149, dated 28 May 1968, which awarded Soldiers in various subordinate units of the 4th Infantry Division the CIB.  The applicant’s name is included in the list of Soldiers identified from Company E, 1st Battalion, 12th Infantry Regiment, who received the CIB.  

9.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant being wounded in action. 

10.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS), maintained by the Human Resources Command (HRC) Military Awards Branch, which is a web-based index containing award general orders issued between 1965 and 1973 for the Vietnam era, was also reviewed by a member of the Boards staff.  No award orders for the applicant were identified on ADCARS.  There were no PH or SS orders in this file for the applicant. 

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

12.  Paragraph 2-13 of the awards regulation contains guidance on the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of campaigns and shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase III, TET Counteroffensive, and Vietnam Counteroffensive Phase IV campaigns. 

13.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-10 states, in pertinent part, that the SS is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction. 


14.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  

15.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (Company E, 1st Battalion, 12th Infantry Regiment) received the RVN Civil Actions Honor Medal First Class Unit Citation and RVN Gallantry Cross with Palm Unit Citation.  

16.  Title 10 of the U.S. Code, section 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.  The applicant’s contention that he was awarded the CIB and it should be added to his record and DD Form 214 was carefully considered and found to have merit.  By regulation, the CIB is authorized to members who hold and served in an infantry MOS, in a qualifying infantry unit, and who are present and participate with the qualifying infantry unit while it is engaged in active ground combat with enemy forces.  In this case, the record shows the applicant held and served in an infantry MOS in a qualifying infantry unit while serving in the RVN, and he has provided CIB award orders issued by the 4th Infantry Division in the RVN in May 1968, which identify him as a CIB recipient .  Therefore, the CIB should be added to his record and DD Form 214. 


2.  The record is also void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying honorable active duty service from 15 September 1966 through 14 June 1968, and to add this award to his record and DD Form 214.

3.  The evidence of record further shows that based on his RVN service and campaign participation, he is also eligible for the RVN Civil  Actions Honor Medal First Class Unit Citation, RVN Gallantry Cross with Palm Unit Citation and 
3 bronze service stars to be worn with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214.  

4.  The applicant’s contention that he should have been awarded the SS and PH was also carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, in order to support award of the PH, there must be evidence that a wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  In this case, there are no orders or other documents on file that indicate the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  Further, the PH is not included in the list of awards contained on his DD Form 214 and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Absent any evidence of record or independent evidence provided by the applicant that shows he was ever wounded in action or treated for a combat related wound by military medical personnel, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

5.  The applicant’s record is also void of any orders or other documents that indicate the applicant was ever recommended for awarded the SS by proper authority while he was serving on active duty.  Therefore, absent a recommendation and supporting documentation, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  While there is insufficient documentation and evidence to award the applicant the SS, this in no way affects the applicant’s right to pursue his claim for award of the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of Title 10, 
U.S. Code, section 1130.  

6.  The applicant and all others concerned should know that this action related to award of the PH and SS 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.  
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 (1st Award) for the period   15 September 1966 through 14 June 1968; and

     b.   adding the Army Good Conduct Medal, Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and 3 bronze service stars to be worn with his Vietnam Service Medal to his DD Form 214.  

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 award of the Silver Star and Purple Heart.  




      _______ _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.
Ar20090
ABCMR Record of Proceedings (cont)                                         AR20090000430



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ABCMR Record of Proceedings (cont)                                         AR20090000430



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