IN THE CASE OF:	  

		BOARD DATE: 	       4 August 2009

		DOCKET NUMBER:  AR20090002204 


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 the Purple Heart (PH) and Army Commendation Medal (ARCOM) with "V" (Valor) Device.   

2.  The applicant states, in effect, that he served in the Republic of Vietnam (RVN) from December of 1966 through December of 1967, as a member of the 3rd Platoon, Company B, 3rd Battalion, 1st Brigade, 9th Infantry Division for the first nine months and was then transferred to Company B, 5th Battalion, 60th Mechanized Infantry, 9th Infantry Division.  He claims he is requesting the PH for a shrapnel wound he received on a search and destroy mission on 26 July 1967, for which he received treatment by military medical personnel between 26 July and 12 August 1967.  He claims that while he was on light duty during his treatment for this wound, the company clerk informed him to report to the headquarters to sign for his PH.  He states that he does not recall why, but he was unable to report and shortly thereafter, he returned to duty.  He indicates he was then transferred and assumed the award would follow him to his new unit.  It did not, and he lost sight of it.  

3.  The applicant further states that he is also requesting the ARCOM with "V" Device, which he was recommended for by his platoon leader for his role in an ambush of four Viet Cong Tax Collectors described in a news article he provides. He states that he never received the award and his platoon leader was wounded shortly thereafter, which resulted in his either being reassigned or being sent home.  He indicates that sometime later, his sergeant informed the applicant that he, the sergeant, had recommended against the award.  
4.  The applicant further states that the sergeant indicated he later decided the applicant was a better Soldier than he thought and apologized to the applicant for interfering with the applicant receiving the award.  The sergeant was also wounded and sent home.  He states that since his platoon leader and the sergeant were no longer in the unit, he thought he had no recourse for an appeal. He indicates that at the time, awards were not important to him.  He claims he wanted to do his job and stay alive if he could.  He indicates that as he now reflects on the past, he is proud of what he did and yet he has nothing to show for it.  He is requesting help and reconsideration in helping him get the recognition he deserves.  He concludes by stating he is a proud member of the Veterans of Foreign Wars and Vietnam Veterans of America.  

5.  The applicant provides a self-authored statement, medical treatment records, a newspaper article, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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's complete military record is not available to the Board for review.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using a reconstructed record that consist of the applicant's DD Form 214, documents that remain on file at the National Personnel Records Center, and the documents provided by the applicant. 

3.  The applicant's DD Form 214 shows he was inducted into the Army and entered active duty on 18 April 1966.  

4.  The applicant's DD Form 214 confirms he was honorably released from active duty (REFAD), by reason of expiration of term of service, on 17 April 1968.  At the time, he had completed 2 years of active military service, of which 11 months and 24 days were served in the RVN.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows he earned the following awards:  the National Defense Service Medal, Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), RVN Campaign Medal, Air Medal (AM), Marksman Marksmanship Qualification Badge with Pistol Bar, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.  

5.  The applicant provides Standard Forms s(SFs) 600 (Chronological Records of Medical Care), which show he was treated for a fragment wound of his left thigh between 26 July and 12 August 1967.  None of these treatment records contain any information regarding how the shrapnel wound in question was sustained.

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry on this roster pertaining to the applicant.

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

8.  Paragraph 3-1 of the awards regulation states, in pertinent part, that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  

9.  Paragraph 3-17 of the same regulation states, in pertinent part, that the ARCOM is awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement or meritorious service.  Awards of the ARCOM may be made for acts of valor ("V" Device) performed under circumstances described above which are of lesser degree than required for award of the Bronze Star Medal. 

10.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 applicant's contention that he should be awarded the PH was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.  

2.  The applicant's name is not listed on the Vietnam Casualty Roster, the official list of RVN battle casualties.  Further, the medical treatment records he provides, while showing he was treated for a fragment wound to his right thigh between   26 July and 12 August 1967, are void of any information regarding how the wound was incurred and fails to establish that the wound in question was actually received as a result of enemy action.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this late date.  

3.  There is also no evidence to corroborate the applicant's claim that he was recommended for or awarded the ARCOM with "V" Device by proper authority while serving on active duty.  Therefore, absent a recommendation and supporting documentation, there is an insufficient evidentiary basis for the Board to award the applicant the ARCOM with "V" Device.  While there is insufficient documentation and evidence to support this award by the Board, this in no way affects the applicant’s right to pursue his claim for award of the ARCOM with "V" Device by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress, under the provisions of Title 10, 
U.S. Code, section 1130.  

4.  The applicant and all others concerned should know that this action related to award of the PH and ARCOM with "V" Device in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  


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)                                         AR20090002204



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ABCMR Record of Proceedings (cont)                                         AR20090002204



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