IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090002460 


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 DD Form 214 (Report of Transfer or Discharge) to show award of the Purple Heart, the Prisoner of War (POW) Medal, the Combat Infantryman Badge, and the Silver Star.  He requests that item 25 (Education and Training Completed) on his DD Form 214 be corrected to show he completed the Emergency Medical Course and 35mm Projection training.  He also requests that entries on his induction record be corrected.  

2.  The applicant states, in effect, that although the National Records office indicates that there were no records found to show he was authorized the Purple Heart, his DA Form 20 (Enlisted Qualification Record) shows he was a patient and that he was evacuated to the hospital.  He points out that his dental records at the Department of Veterans Affairs Medical Center accurately reflect his POW status, that he received 35mm projection training in Okinawa, and that his lieutenant told him that he was putting him in for the Silver Star.  He also contends that his induction record shows that he does not have a middle name but his middle name is Christopher and that his induction record shows a conviction for possession of liquor but he was never arrested.     

3.  The applicant provides a copy of his induction record; his DA Form 20; numerous orders; numerous photographs of a Soldier and awards on a uniform; a photograph of a folder with a "POW" label; and a certificate of training 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.  Item 1 ((Print) First Name - Middle Name - Maiden Name (If any) - Last Name) on the applicant's DD Form 398 (Statement of Personal History), dated 
14 July 1966, shows he entered the entry "(NMN)" [no middle name].  Item 
18 (Have you ever been detained, held, arrested, indicted or summoned into court as a defendant in a criminal proceeding, or convicted, fined, or imprisoned or placed on probation, or have you ever been ordered to deposit bail or collateral for the violation of any law, police regulation or ordinance?) on this form shows the applicant marked "Yes" and entered the entry "possession of alcohol fine $29." 

3.  Item 1 (Last Name - First Name - Middle Name) on the applicant's induction record shows the entry "NMN."  This form also shows that he was convicted of possession of liquor on an unknown date and he paid a $29 fine.  

4.  The applicant was inducted in the Army of the United States and entered active duty on 14 July 1966.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He arrived in Vietnam on 17 February 1967.  He served in MOS 11B assigned to Company D, 1st Battalion, 
12th Cavalry, 1st Cavalry Division in Vietnam from 23 February 1967 through 
26 March 1967.  His DA Form 20 shows he was a patient from 27 March 1967 through 17 April 1967 at Camp Zama, Japan.  He served in MOS 11B assigned to Company D, 1st Battalion, 12th Cavalry, 1st Cavalry Division in Vietnam from 
18 April 1967 through 16 June 1967.  His DA Form 20 shows he was a patient at the 106th General Hospital in Japan from 17 June 1967 until he was transferred to Okinawa on 30 June 1967.  His DA Form 20 shows he was a patient in California from 21 August 1967 to 8 November 1967.  On 4 June 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).    

5.  The applicant's DD Form 214 does not show the Purple Heart, the POW Medal, the Combat Infantryman Badge, or the Silver Star as authorized awards.  
Item 25 on his DD Form 214 shows he completed the Battle Indoctrination, Code of Conduct training, Military Justice training, and Nonjudicial Punishment  training. 

6.  There is no evidence in the available records which shows the applicant was awarded the Purple Heart or that he was wounded as a result of hostile action in Vietnam.

7.  The applicant's DA Form 20 does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

8.  In support of his claim for the Purple Heart, the applicant provided numerous orders which show he was hospitalized in Japan and California.  However, these orders do not show that he was hospitalized as a result of hostile action in Vietnam.

9.  There is no evidence of record which shows the applicant was a POW.  Officials at the POW Branch, U.S. Army Human Resources Command, Alexandria, Virginia verified that the applicant's name did not appear on the Vietnam POW Data File.

10.  In support of his claim for the POW Medal, the applicant provided a photograph of a folder with a "POW" label.

11.  There are no orders for the Combat Infantryman Badge or the Silver Star in the available records.

12.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart, the Combat Infantryman Badge, or the Silver Star. 

13.  Item 27 (Military Education) on the applicant’s DA Form 20 is blank.  Item 
28 (Specialized Training) on his DA Form 20 shows he completed Code of Conduct training, Nonjudicial Punishment training, Military Justice training, and Chemical/Biological/Radiological training on 21 October 1966.  
  
14.  The applicant provided a Certificate of Training which shows he completed the Emergency Medical Course at Fort, Sill, Oklahoma on 29 March 1968.
15.  There is no evidence of record which shows the applicant completed the 35mm Projection course.

16.  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 medical personnel, and the medical treatment must have been made a matter of official record.  

17.  Army Regulation 600-8-22 provides, in pertinent part, for award of the POW Medal.  The regulation states that the POW Medal was authorized on 8 November 1985 and is awarded to individuals who in past armed conflicts were taken prisoner or held captive.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.  Additionally, appendix V of U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

19.  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.

20.  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 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.

21.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation in effect at the time provided, in pertinent part, that item 25 would list service schools, including major courses that were successfully completed, and military sponsored courses completed in civilian schools and colleges during the period covered by the DD Form 214.  The regulation also stated that installation training courses (qualification courses), military correspondence courses, and off-duty courses the enlisted person completed successfully during the period covered by the DD Form 214 would be entered in item 25 for enlisted personnel. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was hospitalized during his assignment in Vietnam were noted.  However, there is no evidence of record which shows he was hospitalized as a result of hostile action in Vietnam.  There are no orders for the Purple Heart and there is no evidence of record which shows the applicant was wounded as a result of hostile action in Vietnam.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.  

2.  There is no evidence of record which shows the applicant was a POW.  In the absence of orders for the POW Medal or other evidence showing the applicant was a POW, the folder with the "POW" label is not sufficient as a basis for award of the POW medal in this case.

3.  Although the evidence of record shows the applicant held and served in an infantry MOS in Vietnam, there is no evidence of record which shows he served in active ground combat while an assigned member of an infantry unit of brigade or smaller size in Vietnam.  In addition, there are no orders for the Combat Infantryman Badge.  Therefore, there is insufficient evidence on which to base award of the Combat Infantryman Badge in this case.

4.  There are no orders for the Silver Star in the available records.  Therefore, there is insufficient evidence on which to base award of the Silver Star in this case.   

5.  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 award of the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  Since the Emergency Medical Course is an installation training course, it would be appropriate to add this course to item 25 on his DD Form 214.

7.  Although the applicant contends that he completed 35mm Projection training, there is no evidence of record to support this contention.  Therefore, there is no basis for granting the applicant's requested relief on this training.   

8.  The applicant's contentions pertaining to his middle name and prior conviction for possession of liquor/alcohol on his induction record were noted.  However, evidence of record shows that on 14 July 1966 he reported that he did not have a middle name and that he had a conviction for possession of alcohol on his DD Form 398.  Therefore, there is no basis for amending his induction record.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Emergency Medical Course in item 25 on his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart, the POW Medal, the Combat Infantryman Badge, the Silver Star, amendment of item 25 on his DD Form 214 to show he completed 35mm Projection training, or amendment of his induction record.   





      _______ _   _XXX______   ___
               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)                                         AR20090002460





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002460



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1