IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20090001996 


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 that the award of the Purple Heart and the Silver Star be listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that he was awarded the Silver Star and the Purple Heart in Vietnam.  However, he adds the only proof that he received these awards is contained in newspaper articles from his hometown.  The applicant maintains that he received several injuries while in Vietnam, but the reports were not in his medical records. 

3.  The applicant provides copies of two newspaper articles with pictures.

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 that he enlisted in the Regular Army on
16 April 1957.  He served in the Republic of Vietnam from 28 February 1968 to 21 February 1969.  On 4 December 1972, he was medically retired after completing 15 years, 7 months and 14 days of active service.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 4 December 1972 shows that he was awarded the Bronze Star Medal and the Combat Infantryman Badge, among other awards.  However, this form does not show award of the Purple Heart or the Silver Star.  The applicant's military service records do not contain any general orders awarding him the Purple Heart or the Silver Star.  The applicant's name is not listed on the Vietnam casualty roster.

4.  The newspaper articles provided by the applicant from his hometown are from unknown sources and undated.  One article cited the applicant’s valorous actions while in Vietnam, and that he earned the Bronze Star Medal with the “V” Device.  A second article referred to an enemy ambush while the applicant was with the Rangers during a March operation near the close of the 1968 Tet Offensive.  The article stated that the enemy sprung an ambush on the Rangers from two sides and the applicant immediately struck out for the enemy and silenced two machine guns and a mortar position.  Although the applicant was pained by shrapnel wounds in both legs, he directed the Rangers’ return fire upon the enemy’s positions.  The article added that the applicant’s performance during that operation earned him triple recognition:  the Combat Infantryman Badge, Purple Heart, and the Silver Star.

5.  There is no documentation in the available records which show the applicant sustained wounds or was treated for wounds incurred as a result of hostile action.

6.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing U. S. Army general orders issued between 1965 and 1973 for the Vietnam era, does not show award orders were published awarding the applicant the Silver Star. 

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


8.  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.

9.  Title 10 of the U. S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant provided two newspaper articles in which one stated that he was awarded the Bronze Star Medal with “V” device while the other article added that he was pained by shrapnel wounds in both legs and was awarded the Combat Infantryman Badge, the Purple Heart and a Silver Star are not sufficient evidence on which to add award of the Purple Heart and/or the Silver Star to his DD Form 214.  Although the applicant’s records show he was awarded the Combat Infantryman Badge and the Bronze Star Medal, there is no evidence to show that the Bronze Star Medal contained the “V” Device.

2.  In addition, there are no medical records available which show the applicant was wounded or treated for wounds as a result of hostile action during his service in Vietnam.  The newspaper articles, in the absence of supporting medical evidence, are not sufficient evidence to justify the award of the Purple Heart in this case or to show that he was awarded the Purple Heart. 

3.  The applicant's military personnel record and the web-based ADCARS do not contain orders awarding him the Silver Star.  There is no evidence of record that shows the applicant was recommended for or awarded the Silver Star by higher authority.  Therefore, there is insufficient evidence to award the applicant the Silver Star or to add the Silver Star to his DD Form 214.

4.  While the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20090001996



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ABCMR Record of Proceedings (cont)                                         AR20090001996



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