IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001354 


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 a second Purple Heart, the Republic of Vietnam Campaign Medal, the Army Commendation Medal with "V" Device, and their addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he was wounded twice in combat and was awarded only one Purple Heart.  He also states that he was awarded the Vietnam Service Medal, but was never awarded the Republic of Vietnam Campaign Medal.  He had no idea that it was possible to make this request until 2001.

3.  In support of his application, the applicant provides copies of General Orders Number 10536 for the Army Commendation Medal for heroism, his DD Form 214, his Veterans Administration (VA) Form 21-526 (Veteran's Application for Compensation or Pension), his VA Rating Decision, and a Purple Heart information paper.  

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 records show he was inducted into the Army of the United States and entered active service on 13 September 1967, in pay grade E-1.  He completed his basic combat and advanced training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 28 February to 10 July 1968, with Company D, 2nd Battalion (Airborne), 8th Cavalry.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments) shows he was placed in a patient status on 4 July 1968 and departed Vietnam in that status on 10 July 1968 for further hospitalization and treatment.  This record further show he received "excellent" conduct and efficiency ratings throughout his tenure of service.

4.  The applicant was honorably released from active duty on 12 September 1969, at the expiration of his term of service, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The highest rank/grade he held during his period of service was Sergeant (SGT)/E-5.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, Purple Heart, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Army Commendation Medal, Vietnam Service Medal, and the First Class Gunner Badge with Machine Gun.  A second award of the Purple Heart, Republic of Vietnam Campaign Medal with Device (1960), and the Army Commendation Medal with "V" Device are not shown on his DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he was awarded one award of the Purple Heart.  It also shows award of the Army Commendation Medal based on General Orders 10536, dated 15 August 1968.


7.  There are no orders in the applicant's military personnel records awarding him a second Purple Heart.

8.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

9.  The applicant provides a copy of his VA Form 21-526, dated 17 October 1969, that stated he was wounded in the back by shrapnel on 25 May 1969 and received shrapnel wounds in both legs and right wrist on 20 June 1968.  He also submits a copy of his VA Rating Decision, dated 8 December 1969, that stated, in effect, he was wounded twice, the first occasion in May 1968 and the second occasion in June 1968 when he stepped on a mine and suffered multiple fragmentation wounds of both lower extremities and also a fragment hit to the right forearm just above the wrist.  He further submits an information paper on the Purple Heart.

10.  The applicant's records contain, and he submits, a copy of General Orders Number 10536, dated 15 August 1968, awarding him the Army Commendation Medal with "V" Device, for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 7 April 1968.

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 military personnel, and the medical treatment must have been made a matter of official record.  A Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award an Oak Leaf Cluster will be awarded.  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.

12.  Army Regulation 600-8-22 also provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal.  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 and contributed 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 wounds resulting from hostile action were entitled to award of the Republic of Vietnam Campaign Medal.

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

14.  Army Regulation 672-5-1 (Awards), in effect at the time, provides that the 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.

15.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation
600-8-22 contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B, Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he participated in the Tet Counteroffensive
(30 January 1968 - 1 April 1968); Vietnam Counteroffensive, Phase IV (2 April 1968 - 30 June 1968); and the Vietnam Counteroffensive, Phase V (1 July 1968 - 1 November 1968) campaigns.

16.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment with Company D, 2nd Battalion, 8th Cavalry, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, by Headquarters, Department of the Army General Order Number 59, dated 1969. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service records provide no evidence he ever sustained or was treated for wounds received as a result of hostile action on more than one occasion or that he was eligible for award of a second Purple Heart.  A second award of the Purple Heart cannot be granted solely because the applicant's VA Form 21-526 and VA Rating Decision stated, in effect, that he was wounded twice in Vietnam.  The criteria for award of the Purple Heart specified in the applicable regulation must be met in order to award a Purple Heart.  Without corroborating evidence of record there is an insufficient basis to grant this portion of the applicant's requested relief.  


2.  General orders awarded the applicant the Army Commendation Medal with “V" Device for heroism in the Republic of Vietnam on 7 April 1970.  There is no evidence of record that shows the applicant received more than one award of the Army Commendation Medal.  It appears that the Army Commendation Medal is erroneously shown on his DD Form 214 without the "V" Device.  Therefore, it would be appropriate to correct his records to show this award with the "V" Device.

3.  The evidence of records show the applicant was in a patient status as a result of being wounded in action and was medically evaluated prior to completion of 6 months service in Vietnam.  Therefore, he is entitled to award of the Republic of Vietnam Campaign Medal with Device (1960) and to have this award shown on his DD Form 214.

4.  The evidence of record shows that the applicant completed a qualifying period of service for award of the Good Conduct Medal.  There is no evidence his commander ever disqualified him from receiving the award and there is no evidence of any misconduct which would justify denying him the award.  He received all "excellent" conduct and efficiency ratings through his service and he was honorably discharge at the expiration of his term of service as a SGT.  In view of the foregoing, it appears the applicant met the basic qualifications for the first award of the Army Good Conduct Medal for the period 13 September 1967 to 12 September 1969.  Therefore, he is entitled to award of the Army Good Conduct Medal (first award) and correction of his records to show this award.

5.  The evidence further confirms that the applicant is entitled to the Vietnam Service Medal with three bronze service stars and the Republic of Vietnam Gallantry Cross with Palm Unit Citation and correction of his records to show these 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.  deleting from item 24 of the applicant's DD Form 214 the Army Commendation Medal and the Vietnam Service Medal;

	b.  awarding the applicant the Army Good Conduct Medal (first award) for the period from 13 September 1967 to 12 September 1969;

	c.  adding to item 24 of the applicant's DD Form 214 the Army Commendation Medal with "V" Device, Army Good Conduct Medal (first award), the Republic of Vietnam Campaign Medal with Device (1960), and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and 

	d.  providing the applicant a corrected separation document.

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 a second Purple Heart and its addition to his DD Form 214.



      _________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)                                         AR20090001354



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ABCMR Record of Proceedings (cont)                                         AR20090001354



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