DOCKET NUMBER:  AR20090002316 


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, correction of his records to show he held the grade of Sergeant (SGT)/pay grade E-5 at the time of his separation, award of the Silver Star, and two awards of the Purple Heart.

2.  The applicant states, in effect, he held the grade of SGT (E-5) at the time of his separation, but his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the grade of Specialist 4 (SP4)/pay grade E-4.  He also states he received the Silver Star while he was in a hospital in Vietnam, but at the time of his separation processing Army officials would not check on the award and did not record it on his DD Form 214.  He further states that he was wounded in a village in Vietnam, it took two days to get to a hospital because the medical evacuation helicopter would not land to pick up the wounded, and he was told he had two awards of the Purple Heart.  However, at the time of his separation processing he told Army officials he was only wounded once and, as a result, only one award of the Purple Heart was recorded on his DD Form 214.  The applicant concludes by stating he believes these mistakes were made while he was in Vietnam and it may be that the incorrect entries on his DD Form 214 are the result of mistaking his records with another Soldier’s records.

3.  The applicant provides copies of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 17 December 2008 and DD Form 214 with an effective date of 10 August 1968.



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 military personnel records show he was inducted into the Army of the United States for a period of 2 years on 7 September 1966.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11D (Armor Intelligence Specialist).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

   a.  Item 31 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) beginning 10 August 1967.

   b.  Item 33 (Appointments and Reductions), in pertinent part, shows he was promoted to the grade of SP4 (E-4) with a date of rank of 21 July 1967 per Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Orders Number 202 (1967).  This item is absent any evidence the applicant was promoted to the grade of E-5.

     c.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Troop C, 2nd Squadron, 1st Cavalry, 4th Infantry Division (USARPAC, RVN) from 10 August 1967 through 24 May 1968 and then assigned to Troop C,
1st Squadron, 4th Cavalry, 1st Infantry Division (USARPAC, RVN) from
25 May through 6 August 1968.

     d.  Item 40 (Wounds) is absent any entries.

     e.  Item 41 (Awards and Decorations) is absent an entry showing award of the Silver Star; however, this item shows the applicant was awarded the Purple Heart per Headquarters, 71st Evacuation Hospital (Vietnam), General Orders Number 62 (1968).  This item also shows the applicant was awarded the Purple Heart per Headquarters, 4th Infantry Division (Vietnam), General Orders Number 599 (1968); however, this entry is lined-through (i.e., deleted).  

4.  The applicant’s military personnel records contain a copy of Headquarters,
2nd Armored Division, Fort Hood, Texas, Special Orders Number 202, dated
21 July 1967, that show, in pertinent part, the applicant was appointed by the Commanding Officer, Troop C, 2nd Squadron, 1st Cavalry Regiment, to the temporary grade of SP4 (E-4) effective 21 July 1967.

5.  The applicant’s military personnel records contain a copy of Headquarters,
4th Infantry Division (Vietnam), General Orders Number 599, dated 9 February 1968, that show, in pertinent part, the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 2 February 1968.

6.  The applicant’s military personnel records contain a copy of Headquarters,
71st Evacuation Hospital (Vietnam), General Orders Number 62, dated
22 February 1968, that show, in pertinent part, the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 4 February 1968.

7.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing confirmed that the applicant’s name is listed once as having been wounded in action on 4 February 1968.

8.  There is no evidence in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action other than for wounds he received on 4 February 1968.

9.  There is no evidence in the applicant’s military personnel records that shows he was awarded a second award of the Purple Heart (i.e., Purple Heart (1st Oak Leaf Cluster)).

10.  There are no orders or other evidence in the applicant’s military personnel records showing he was awarded the Silver Star.

11.  A search of the U.S. Army Human Resources Command (USA HRC), Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce any award orders pertaining to the applicant showing he was awarded the Silver Star during his service in the RVN.



12.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Personnel Center, Oakland, California, Special Orders Number 223, dated 10 August 1968, that show, in pertinent part, the applicant was released from active duty (REFRAD) on 10 August 1968 and transferred to the U.S. Army Reserve (USAR) Control Group.  The Standard Name Line of these orders shows the applicant’s grade as “SP4 E-4.”

13.  There are no orders or other evidence in the applicant’s military personnel records showing he was promoted to the grade of SGT (E-5).

14.  The applicant’s military personnel records contain a DD Form 214 that shows he was inducted on 7 September 1966, honorably REFRAD on 10 August 1968, and transferred to the USAR Control Group (Annual Training) to complete his remaining military service obligation.  At the time of his separation the applicant had completed 1 year, 11 months, and 4 days of net active service this period and 1 year and 1 day of foreign service.  Item 5a (Grade, Rate or Rank) contains the entry “SP4 (T)”; Item 5b (Pay Grade) contains the entry “E-4”; and Item 5c (Date of Rank) contains the entry “21 Jul 67.”  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Purple Heart, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Combat Infantryman Badge.  

15.  Army Regulation 600-8-22 (Military Awards) 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.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

16.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

17.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the bronze oak leaf cluster is awarded to denote each succeeding award of certain decorations, among which is the Purple Heart.

19.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or 
Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, 
Officer Qualification Record, and orders.

   a.  Paragraph 23 (Item 5a - Grade, Rate or Rank; Item 5b - Pay Grade, and Item 6 - Date of Rank) states, “Self-explanatory.”

   b.  Paragraph 53 (Item 24 - Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) states, in pertinent part, to list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he held the grade of SGT (E-5) at the time of his separation, award of the Silver Star, and two awards of the Purple Heart because he believes mistakes were made while he was in Vietnam that resulted in incorrect entries being made on his DD Form 214.

2.  Records show that Special Orders appointed the applicant to the temporary grade of SP4 (E-4) effective and with a DOR of 21 July 1967.  The applicant’s DD Form 214 shows the applicant was REFRAD on 10 August 1968 and that his grade is recorded as SP4 (E-4) with a DOR of 21 July 1967.  There are no orders or other evidence of record that shows the applicant was promoted to the grade of SGT (E-5) during the period 22 July 1967 through the date he was REFRAD on 10 August 1968.  Thus, the evidence of record does not support the applicant’s contention that he held the grade of SGT (E-5) at the time of his separation.  Therefore, there is insufficient evidence to support correction of the applicant’s records in this instance.

3.  There are no orders or other evidence in the applicant’s military personnel records showing he was awarded the Silver Star.  Moreover, a thorough search of the USA HRC ADCARS failed to produce orders pertaining to an award of the Silver Star to the applicant.  Therefore, there is insufficient evidence to support the applicant’s claim to the Silver Star.

4.  Records shows that Headquarters, 71st Evacuation Hospital (Vietnam), General Orders Number 62, dated 22 February 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 4 February 1968.  The Adjutant General's Office Casualty Division's Vietnam Casualty Listing confirms that the applicant’s name is listed once as having been wounded in the RVN on 4 February 1968.

   a.  The USARV regulation in effect at the time, stated that authority to award the Purple Heart was delegated to hospital commanders.  It also directed that all personnel treated and released within 24 hours were to be awarded the Purple Heart by the organization to which the individual is assigned, whereas personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam were to be awarded the Purple Heart directly by the hospital commander rendering treatment.

	b.  It cannot be determined from the available evidence exactly when the applicant was released from the 71st Evacuation Hospital (Vietnam).  However, based on the available evidence, it appears the applicant’s hospital stay exceeded 24 hours.  Thus, it may be concluded that the Commander,
71st Evacuation Hospital (Vietnam) was the delegated award approval authority in this instance.  Therefore, the evidence of record confirms the validity of applicant’s award of the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 4 February 1968.

5.  The evidence of record shows that Headquarters, 4th Infantry Division (Vietnam), General Orders Number 599, dated 9 February 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 2 February 1968.

   a.  Records also show that the entry in item 41 of the applicant’s DA Form
20 showing award of the Purple Heart per Headquarters, 4th Infantry Division (Vietnam), General Orders Number 599 (1968) follows the previous award of the Purple Heart and is lined-through (i.e., deleted).  While there are no orders showing the award order was revoked, it is reasonable to conclude that the entry was deleted based on the fact that the General Orders were revoked because they were in error (i.e., indicating the applicant was wounded on 2 February versus 4 February 1968).

   b.  The applicant provides no official documentary evidence pertaining to a wound or injury (e.g., battle casualty report, medical treatment records, etc.) in support of his request for a second award of the Purple Heart.
   
   c.  There is no evidence in the applicant’s military service records that shows he was wounded a second time as a result of hostile action, that such wound required treatment by medical personnel, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is listed only once on The Adjutant General's Office Casualty Division's Vietnam Casualty Listing (i.e., for a wound sustained on 4 February 1968) and there are no orders in his military personnel records that show he was awarded a second award of the Purple Heart (i.e., Purple Heart with Oak Leaf Cluster).  Therefore, in view of the foregoing, there is insufficient basis for awarding a second Purple Heart to the applicant in this case. 

6.  The sincerity of the applicant’s comments is not in question.  However, the Military Awards regulation is clear in that announcement of personal decorations in orders is required.  The evidence of record fails to satisfy this requirement.  Therefore, in view of the foregoing, there is insufficient evidence to support the applicant’s claim to the Silver Star and/or Purple Heart with bronze oak leaf cluster.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090002316



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ABCMR Record of Proceedings (cont)                                         AR20090002316



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