DOCKET NUMBER:  AR20090002407 


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 award of the Purple Heart and the "Meritorious Service Award" (i.e., an appropriate award for his service in the Republic of Vietnam).

2.  The applicant states he suffered shrapnel wounds to his hands in or around September 1968 during combat operations in the Republic of Vietnam while with C Company, 1st Battalion, 50th Mechanized Infantry, 173rd Airborne Brigade.  He adds that the medic dressed up his wounds and wrote him up for the Purple Heart, but he has not received it.   He also states that his installation clearance record show his conduct and efficiency ratings as excellent and that he was not presented with a meritorious service award.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 14 November 1969; a copy of his DA Form 137 (Installation Clearance Record), dated 18 April 1969; a statement of support, dated 7 March 2007; an extract from the 173rd Airborne Brigade newspaper, dated 16 September 1968; a copy of his Honorable Discharge Certificate, dated 1 November 1973; and a copy of Letter Orders Number 10-1266877, issued by the U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, in support of his request.

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 he was inducted into the Army of the United States on 15 November 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably released from active duty in the rank/grade of sergeant/E-5 on 14 November 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training).

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 23 April 1968 to on or about 20 April 1969.  He was assigned to Company C, 1st Battalion, 50th Infantry, 173rd Infantry Brigade. 

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Air Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars.  Item 24 does not show award of the Purple Heart and/or any meritorious service awards.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry. 

6.  Item (Awards and Decorations) of the applicant’s DA Form 20 does not show award of the Purple Heart and/or any meritorious service awards.  Additionally, there are no general orders in the applicant's records that show he was awarded the Purple Heart and/or a meritorious service award.

7.  The applicant's name is not shown on the Vietnam Casualty Roster.

8.  The applicant's medical records are not available for review with this case.

9.  During the processing of this case, a member for the Board staff attempted to review the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This system was not operational at the time this case was processed.

10.  The applicant submitted a copy of his DA Form 137, dated 18 April 1968.  This form shows that he had not been presented with a meritorious service award.  

11.  The applicant submitted a statement of support, dated 7 March 2007, from a comrade-in-arms and member of his former unit in the Republic of Vietnam in which he states that C Company was involved in many battles with the enemy during the TET offensive.  He adds that in August 1968, the unit encountered an ambush attempt by the enemy and that he observed the applicant being hit by shrapnel.  He concludes that the unit swept the area and found weapon systems, ammunition, and several killed enemy soldiers.

12.  Army Regulation 600-8-22 (Military Awards) 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 by medical personnel, and the medical treatment must have been made a matter of official record.

13.  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 applicant contends that he should be awarded the Purple Heart and the appropriate service award for his Republic of Vietnam service

2.  With respect to the Purple Heart, there is no evidence in the applicant’s service personnel records that shows he was wounded or injured as a result of hostile action and/or treated for such wounds.  The statement submitted by the applicant's former unit member’s is insufficient by itself to support an award of the Purple Heart in this case.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  With respect to the service award, there is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he was recommended for and/or awarded a meritorious service and/or an achievement award.  The governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant a meritorious service award.

4.  While the available evidence is insufficient for upgrading and/or awarding the applicant a meritorious service award, this in no way affects the applicant’s right to pursue his claim for this award 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)                                         AR20090002407



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ABCMR Record of Proceedings (cont)                                         AR20090002407



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