IN THE CASE OF:	  

		BOARD DATE:	  9 April 2009

		DOCKET NUMBER:  AR20090001051 


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, two awards of the Purple Heart.

2.  The applicant states, in effect, that his awards of the PH and PH with 1st OLC were omitted from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides his DD Form 214 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 record shows he was inducted into the Army of the United States (AUS) and entered active duty on 25 July 1967.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman), and the highest rank he attained while serving on active duty was specialist four (SP4)/E-4.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 8 January 1968 through 7 January 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to I Troop, 3rd Squadron, 11th Armored Cavalry Regiment, performing duties in MOS 11B as a personnel carrier driver.  It also shows he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments.

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); Republic of Vietnam Campaign Medal (RVNCM) with Device (1960), 2 overseas service bars, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.  His MPRJ is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

5.  The applicant's MPRJ is void of any orders or other documents showing he was ever recommended for or awarded the PH or the PH with 1st OLC by proper authority.

6.  On 24 July 1969, the applicant was honorably released from active duty.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  NDSM, VSM, CIB, RVNCM with Device (1960), 2 overseas service bars, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army Vietnam casualty roster.  This search revealed entries confirming the applicant was wounded in action in the RVN on 11 March 1968.


8.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that the 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 treatment must have been made a matter of official record.  
It further states that a PH is authorized for the first wound suffered but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  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.

10.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  It further stipulates that that a silver service star is used in lieu of five bronze service stars to denote participation in five campaigns.  Table B-1 of this regulation contains a list of RVN campaigns and shows that during the applicant's tenure of assignment, participation credit was granted for the Vietnam Counteroffensive Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, and Vietnam Counteroffensive Phase VI.

11.  Chapter 4 of Army Regulation 600-8-22 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.  

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his unit (I Troop, 3rd Squadron, 11th Armored Cavalry Regiment ) received the RVN Gallantry Cross with Palm Unit Citation and Presidential Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to the PH or PH with 1st OLC was carefully considered and found to have partial merit.  The evidence of record confirms he was wounded in action in the RVN on 11 March 1968, as evidenced by an entry on the Vietnam casualty roster, the official Department of the Army list of RVN battle casualties.  However, there is no subsequent entry contained on this roster indicating the applicant was wounded on any other occasion entitling him to award of the PH with 1st OLC.  Therefore, absent any evidence of record or independent documentary evidence provided by the applicant confirming his entitlement to the PH with 1st OLC, it would be appropriate to award him the PH and correct his record and separation document at this time to show his entitlement to this award.

2.  The evidence of record also confirms the applicant received "excellent" conduct and efficiency ratings at all of his active duty assignments and his record is 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 first award of the AGCM for his qualifying period of honorable active duty service from 25 July 1967 through 24 July 1969.

3.  The evidence of record further shows that based on his RVN service and campaign participation, he is entitled to the Presidential Unit Citation, RVN Gallantry Cross with Palm Unit Citation, and 1 silver service star for wear with his VSM.  Therefore, it would also be appropriate to add these awards to his record and separation document.

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 PH for wounds received in action on 11 March 1968;

	b.  awarding him the AGCM for his qualifying honorable active duty service from 25 July 1967 through 24 July 1969;

	c.  amending item 24 of his DD Form 214 by adding the PH, AGCM, VSM with 1 silver service star, Presidential Unit Citation, and Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

	d.  providing him a correction to his separation document that includes these changes.

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 PH with 1st OLC.




      _______ _ 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)                                         AR20090001051



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ABCMR Record of Proceedings (cont)                                         AR20090001051



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