IN THE CASE OF:	  

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  TOLLOTI, THEODORE M.


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states that he was wounded while serving in the Republic of Vietnam. 

3.  The applicant provides no additional documentation 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.  On 17 October 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) 12B (Combat Engineer).

3.  On 21 March 1968, the applicant departed Fort Knox, Kentucky for assignment in the Republic of Vietnam, arriving on 9 April 1968.

4.  On 13 April 1968, the applicant was assigned for duty with Company D, 
70th Engineer Battalion (Construction).

5.  On 24 February 1969, the applicant was assigned, as a patient, to the Medical Holding Company, 106th General Hospital.

6.  On 21 March 1969, the applicant returned to the United States for duty at Fort Benning, Georgia.

7.  On 2 September 1969, the applicant was released from active duty.  He had attained the rank of specialist four, pay grade E-4, and had completed 1 year, 
10 months and 15 days of creditable active duty with no lost time.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, [Republic of] Vietnam Campaign Medal with (1960) Device, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart.

9.  The Vietnam Casualty Roster shows that the applicant was wounded in action on 13 February 1969. 

10.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that his conduct and efficiency ratings were "excellent."  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 

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


12.  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.  

13.  Department of the Army General Orders 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service in Vietnam to Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

14.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of the Purple Heart.

2.  There are no general orders available that show the applicant was awarded the Purple Heart.  However, the applicant's name is listed on the Vietnam Casualty Roster and his records show that he was a hospital patient.  Therefore, the applicant's request for award of the Purple Heart should be granted.

3.  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, he should be awarded this medal.

4.   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.

5.  The applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.   

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 for wounds received in action on 
13 February 1969;
   
   b.  awarding him the Army Good Conduct Medal for the period from 
17 October 1967 to 2 September 1969; and
   
   c.  showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Purple Heart, Army Good Conduct Medal, two additional bronze service stars to be affixed to his already-awarded Vietnam Service Medal (total of four bronze service stars), and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




      _______ _   _XXX______   ___
               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)                                         AR20090001523





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ABCMR Record of Proceedings (cont)                                         AR20090001523



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