IN THE CASE OF:	  

		BOARD DATE: 	        12 May 2009

		DOCKET NUMBER:  AR20090001612 


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, as the legal representative for a former service member (FSM),  requests, in effect, correction of the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Silver Star and the Purple Heart. 

2.  The applicant states, in effect, that a recommendation for award of the Silver Star was made by the FSM's acting first sergeant in 1968 but the FSM never received the award.  He contends that the Purple Heart was later received by the FSM along with other military medals but the letter of recommendation for award of the Silver Star was lost.  He states that the letter has been recovered and submitted to the Department of Veterans Affairs (DVA) Regional Office in Waco, Texas, where the FSM's file is currently located.  He points out that the FSM was initially discharged under other than honorable conditions but his discharge was upgraded by the Army Discharge Review Board (ADRB) in October 1980 where the letter of recommendation for award of the Silver Star was used as an exhibit.    

3.  The applicant provides a VA Form 21-22a (Appointment of Individual as Claimant's Representative); documentation from the DVA; an undated letter from the FSM's acting first sergeant at the time in question; documentation from a Member of Congress; documentation from the Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia; order for the Purple Heart; ADRB Proceedings; a DD Form 214 (Report of Transfer or Discharge); and two service medical records 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 requested correction of the FSM's records to show award of the Silver Star.  There are no orders or other evidence authorizing this decoration to the FSM.  In the absence of a proper award authority for this decoration, the applicant may request award of the Silver Star for the FSM under the provisions of section 1130 of Title 10, U.S. Code.  The applicant has been notified by separate correspondence of the procedures for applying for this decoration under section 1130 and, as a result, it will not be discussed further in these Proceedings.

3.  The FSM's military records are not available to the Board.  This case is being considered using reconstructed records, which primarily consist of the documentation provided by the applicant.

4.  The FSM's DD Form 214 shows he enlisted in the Regular Army on 
25 October 1966 for a period of 3 years.  He served in Vietnam from 8 July 1968 to 15 October 1968, when he was medically evacuated.

5.  The facts and circumstances surrounding the FSM's discharge are not available.  However, his DD Form 214 shows that he was discharged under other than honorable conditions on 16 April 1969 under the provisions of Army Regulation 635-212 for misconduct due to frequent incidents of a discreditable nature with civil of military authorities.  He had served 2 years, 3 months, and 
29 days of creditable active service with 53 days of lost time. 

6.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the FSM's original DD Form 214 shows the Vietnam Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar as authorized awards.

7.  Headquarters, 91st Evacuation Hospital General Orders Number 77, dated 
9 September 1968, show the FSM received the Purple Heart for wounds received in action on 7 September 1968.

8.  On 6 April 1981, the ADRB upgraded the FSM's discharge to general, under honorable conditions.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his re-issued DD Form 214 shows the Vietnam Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar as authorized awards.

9.  Records show that while the FSM was assigned to Vietnam he participated in the Vietnam Counteroffensive, Phase V campaign that extended from 1 July 1968 - 1 November 1968.

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

11.  Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal [correctly known as the Republic of 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.

12.  Army Regulation 600-8-22 provides at the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

13.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, including the Vietnam Service Medal.  

DISCUSSION AND CONCLUSIONS:

1.  Orders show the FSM received the Purple Heart.

2.  The FSM is eligible for award of the Republic of Vietnam Campaign Medal with Device (1960) because he qualified for award of the Vietnam Service Medal and was evacuated prior to completing six months of service due to wounds resulting from hostile action.

3.  The FSM served a period of qualifying service for award of the National Defense Service Medal.
 
4.  The FSM participated in one campaign during his assignment in Vietnam which makes him eligible for award of the Vietnam Service Medal with one bronze service star.

5.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  The FSM served in Vietnam during a qualifying period and is eligible for this award.

6.  In view of the foregoing, the FSM's records should be corrected to show the above awards.

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.  deleting from item 13 of the FSM's re-issued DD Form 214 the Vietnam Service Medal; and
   
   b.  adding to item 13 of the FSM's re-issued DD Form 214 the Purple Heart, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), National Defense Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



      ___________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)                                         AR20090001612



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ABCMR Record of Proceedings (cont)                                         AR20090001612



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