IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090001178 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that he was awarded three Purple Hearts, Bronze Star Medal, Army Good Conduct Medal, and the Republic of Vietnam Campaign Medal.  He further requests a search of his records to find the Silver Star for which he was recommended and is listed in the 25th Infantry Division Yearbook.  

2.  The applicant states that he was wounded in action on 20 September 1968 while serving as a medical specialist with an infantry company in the Republic of Vietnam.  He states that he and two other Soldiers were wounded when their armored personnel carrier hit a land mine.  They were given medical treatment in the field and then air evacuated to the 25th Medical Battalion aid station.  He assumed that whatever documentation was required was done by the staff at the aid station.  Evidence of his wound should be in his official records, but even if it is not, statements provided by the former commander and command sergeant major document the incident.  

3.  The applicant provides, in support of his application, copies of his DD Form 214 and DD Form 215 (Correction to DD Form 214); Honorable Discharge Certificate; orders awarding him the Combat Medical Badge, Distinguished Service Cross, and Purple Heart (two awards); citation for award of the Bronze Star Medal; certificate for award of the Presidential Unit Citation; letters from his former commander and command sergeant major; extract from the history of the 1st Battalion, 5th Infantry Regiment; extract from his combat log; copy of the letter he wrote to his mother on 21 September 1968; and an extract from the "Tropic Lightning," Vietnam, dated 1 October 1967 to 1 October 1968. 

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.  On 14 September 1967, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  On 9 February 1968, the applicant departed Fort Sam Houston, Texas for assignment in the Republic of Vietnam.

4.  On 18 March 1968, the applicant was assigned for duty as a company aidman with Headquarters and Headquarters Company, 1st Battalion, 5th Infantry Regiment, 25th Infantry Division.

5.  On 1 September 1968, the applicant was reassigned for duty as an aidman with Company D, 1st Battalion, 5th Infantry Regiment.

6.  General Orders Number 6427, 25th Infantry Division, dated 16 September 1968, awarded the applicant the Purple Heart for wounds received in action on 11 September 1968.

7.  General Orders Number 8752, 25th Infantry Division, dated 11 December 1968, awarded the applicant his second Purple Heart for wounds received in action on 3 May 1968. 




8.  General Orders Number 5845, Headquarters, United States Army, Vietnam, dated 26 December 1968, awarded the applicant the Distinguished Service Cross for extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam on 11 September 1968.  

9.  General Orders Number 999, 25th Infantry Division, dated 1 February 1968, awarded the applicant the Bronze Star Medal for meritorious service during the period from March 1968 to March 1969.

10.  On 6 March 1969, the applicant returned to the United States for duty at Fort Knox, Kentucky.

11.  On 12 September 1969, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of specialist five, pay grade E-5 and had completed 
1 year, 11 months and 29 days of creditable active duty.

12.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, as previously corrected, lists his awards as the Combat Medical Badge, Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar, Purple Heart with Oak Leaf Cluster, and the Distinguished Service Cross.  It does not show award of a Silver Star, a third Purple Heart, Bronze Star Medal, Army Good Conduct Medal, or the Republic of Vietnam Campaign Medal.

13.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he received wounds in action on 3 May and 11 September 1968.  It does not indicate that he was wounded on 20 September 1968.

14.  Item 41 (Awards and Decorations) of the applicant's DA Form 20, shows that he was awarded two Purple Hearts for wounds received in action.  It does not indicate award of the Silver Star.

15.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal award of the Silver Star or a third Purple Heart.

16.  The Vietnam Casualty Roster shows that the applicant was wounded in combat on 3 May and 11 September 1968.  It does not show that he was wounded on or about 18 to 20 September 1968.  

17.   Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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, and the medical treatment must have been made a matter of official record.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

19.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that his conduct and efficiency were rated as "excellent."  

20.  Army Regulation 672-5-1, in effect at the time, provides that the Army Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.  

21.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the following four campaign periods: the Vietnam Counteroffensive, Phase IV; the Vietnam Counteroffensive, Phase V; the Vietnam Counteroffensive, Phase VI; and the Tet 69 Counteroffensive.   This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  

22.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 1st Battalion, 5th Infantry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders (DAGO) Number  82, dated in 1969, for award of the Presidential Unit Citation; in DAGO Number 48, dated in 1971, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and in DAGO Number 51, dated in 1971 as amended by DAGO Number 9, dated in 1979, for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

23.  Army Regulation 600-8-22 provides, in pertinent part, for award of the 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.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

24.  On 11 November 2008, a retired major general wrote a letter in support of the applicant's request wherein he stated that he recalled the intensity of close combat between 18 August and 20 September 1968.  He stated that the applicant served under his command and that on 20 September 1968, the applicant's vehicle hit a land mine and he was wounded.  The applicant's wounds should have been documented at company and battalion level but due to such a large number of casualties this may not have been done for every one of the "walking wounded."  Wounded medics especially showed a desire to return to their attached units and to continue the fight.

25.  In an undated letter, addressed to "whom it May concern," a retired command sergeant major wrote that the applicant was assigned as a member of a body search team on 20 September 1968.  The applicant was wounded when the armored personnel carrier he was riding in hit a land mine.  He was air evacuated to a nearby medical aid station for treatment.

26.  The applicant has provided a copy of two pages from what he purports to be his combat log from 1968.  On 20 September, the log entry reads, in effect, that he was manning the fifty caliber machine gun when the armored personnel carrier hit a land mine.  He received fragment wounds to the head, hand, and back.  He and another Soldier were dusted off [medically evacuated].

27.  The applicant has provided a copy of a letter he claims to have written to his mother on 21 September 1968.  He stated, in effect, that he was wounded when his vehicle hit a land mine and that this was his third time being wounded.

28.  The "Tropic Lightning," Vietnam yearbook, dated 1 October 1967 to 
1 October 1968, lists the applicant's name among others who received the Silver Star, but it does not show the applicant's name as a recipient of the Distinguished Service Cross. 
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected to show award of the Silver Star, Bronze Star Medal, three awards of the Purple Heart, and the Army Good Conduct Medal. 

2.  There are no available general orders showing that the applicant was awarded the Silver Star.  The evidence provided by the applicant listing his name in the yearbook as a Silver Star recipient is insufficient as a basis for correcting his records.  In that his name is not listed as a Distinguished Service Cross recipient, it may be that his name was simply listed in the wrong section.  Additionally, he could have been authorized an interim award of the Silver Star pending approval of the Distinguished Service Cross by higher authority, which was dated after the date of the yearbook.

3.  General orders show the applicant was awarded two Purple Hearts for wounds sustained on 3 May and 11 September 1968.  However, there are no general orders available that show he was awarded the Purple Heart for wounds sustained on 20 September 1968.  The applicant's name is listed on the Vietnam Casualty Roster for those wounds recognized by general orders, but not for any wounds received on 20 September 1968.   

4.  However, the two letters of support and the applicant's combat log and letter to his mother at the time of the incident are convincing and compelling evidence that he was wounded a third time and transported for medical treatment.  Therefore, as a matter of equity, the applicant's records should be corrected       to show that he was awarded a third Purple Heart for wounds received on          20 September 1968.

5.  The applicant’s records clearly show that he distinguished himself in the performance of his military service.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, his records should be corrected to show award of this medal.

6.  General orders clearly show that the applicant was awarded the Bronze Star Medal.  Therefore, his records should be corrected to show this award.

7.  Records show that the applicant participated in four campaign periods during his service in the Republic of Vietnam.  Therefore, he is eligible for award of four bronze service stars to be affixed to his Vietnam Service Medal.

8.  The applicant’s unit was cited in general orders for award of the Presidential Unit Citation.  Therefore, his records should be corrected to show this unit award.

9.  Records show that the applicant's unit was cited in general orders for 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.  Therefore, his records should be corrected to show these foreign 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.  awarding him the Purple Heart (third award) for wounds received on        20 September 1968;	

   b.  awarding him the Army Good Conduct Medal for the period from 
14 September 1967 to 12 September 1969; and

	c.  showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Bronze Star Medal, Army Good Conduct Medal, four bronze service stars to be affixed to his already-awarded Vietnam Service Medal, Presidential Unit Citation, 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 award of the Silver Star.



      _______ _ 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)                                         AR20090001178





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ABCMR Record of Proceedings (cont)                                         AR20090001178



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