IN THE CASE OF:	  

		BOARD DATE:	       11 JUNE 2009

		DOCKET NUMBER:  AR20090003158 


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 by removing the Bronze Star Medal and Purple Heart from his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 30 September 1994.

2.  The applicant states, in effect, he does not believe he is eligible for the Bronze Star Medal and he knows he is not eligible for the Purple Heart.  He also states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 31 March 1970 does not contain these awards.  However, his DD Form 214 with an effective date of 30 September 1994 shows the awards even though it does not document any assignment during which they could have been awarded.

3.  The applicant provides a copy of DD Form 214 (1 - Member Copy) with an effective date of 31 March 1970 and DD Form 214 (4 - Member Copy) with an effective date of 30 September 1994.

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 and entered active duty on 8 April 1968 for a period of 2 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).

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, Europe in Germany from 27 September 1968 through 24 February 1969 and in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from
19 April 1969 through 31 March 1970.

   b.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Battery D, 3rd Battalion, 319th Artillery, 173rd Airborne Brigade (USARPAC, RVN) from 29 April 1969 through 28 March 1970.

   c.  Item 40 (Wounds) is blank.

   d.  Item 41 (Awards and Decorations) shows he was awarded the Bronze Star Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.  This item also shows the authority for award of the applicant’s Bronze Star Medal as Headquarters, 173rd Airborne Brigade (Vietnam), General Orders Number 451 (1970).

4.  The applicant’s military personnel records contain a copy of Headquarters, 173rd Airborne Brigade (Vietnam), General Orders Number 452, dated 7 March 1970, that show, in pertinent part, the applicant was awarded the Bronze Star Medal for meritorious service in connection with ground operations against a hostile force in the RVN from April 1969 to March 1970.

5.  There are no orders or other evidence in the applicant’s military personnel records showing he was awarded a second award of the Bronze Star Medal
(i.e., Bronze Star Medal with 1st Oak Leaf Cluster).
6.  There is no documentation in the applicant’s military personnel records that show he was wounded or treated for wounds as a result of hostile action.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing confirmed that the applicant’s name is not listed.

7.  There are no orders in the applicant’s military personnel records showing he was awarded the Purple Heart.

8.  There are no orders in the applicant’s military personnel records showing he was awarded the Air Medal.

9.  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 a second award of the Bronze Star Medal, the Purple Heart, or the Air Medal during his service in the RVN.

10.  The applicant’s military personnel records contain a DD Form 214 (Copy 2 -Record Copy) that shows he enlisted and entered active duty this period on
8 April 1968, was honorably released from active duty (REFRAD) on 31 March 1970, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military obligation.  At the time he had completed 1 year, 11 months, and 23 days of net active service this period and
1 year, 4 months, and 9 days of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Bronze Star Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar, and 2 Overseas Service Bars.  

   a.  The applicant’s military personnel records contain a DD Form 214 (Copy
5 - Separation Copy) with an effective date of 31 March 1970 that documents the applicant’s period of active duty service as outlined above.  In pertinent part, Item 24 shows award of the Bronze Star Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar, and 2 Overseas Service Bars.

	b.  The applicant’s military personnel records contain a copy of a DD Form 214 (Copy 1 – Individual's Copy) with an effective date of 31 March 1970 that documents the applicant’s period of active duty service as outlined above.  In pertinent part, Item 24 shows award of the Bronze Star Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar, and 2 Overseas Service Bars.  However, Item 24 also contains a second line of entries that shows the following, “BS/WOLC   CIB   PH   AM   A/ACOM   GC” (i.e., Bronze Star Medal with Oak Leaf Cluster), Combat Infantryman Badge, Purple Heart, Air Medal, Army Commendation Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation).

11.  The applicant’s military personnel records show he was honorably discharged from the USAR on 8 June 1970; he enlisted in the Air National Guard of the United States on 9 June 1970; he was separated on 8 June 1971 and transferred to the U.S. Air Force Reserve (USAFR) on 9 June 1971.  He was honorably discharged on 7 April 1972.

12.  The applicant’s military personnel records show he enlisted in the USAR on
8 April 1972, served in the USAR through 6 January 1980, and was ordered to active military service on 7 January 1980.  On 15 October 1982, the applicant was awarded primary MOS 11B (Infantryman).

13.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).

   a.  Item 5 (Foreign Service) shows he served overseas in Panama from
8 May 1991 through 28 May 1991.

   b.  Item 9 (Awards, Decorations and Campaigns) shows he was awarded the Bronze Star Medal, Meritorious Service Medal, Army Commendation Medal
(2nd Oak Leaf Cluster), Army Achievement Medal (1st Oak Leaf Cluster), Army Reserve Components Achievement Medal (2nd Oak Leaf Cluster), Good Conduct Medal (5th Award), National Defense Service Medal (2nd Award), Armed Forces Reserve Medal, Army Reserve Components Overseas Training Ribbon, Republic of Vietnam Campaign Medal, Senior Parachutist Badge, Parachutist Badge, Air Assault Badge, Expert Marksmanship Qualification Badge with Rifle Bar, Special Forces Tab, and 2 Overseas Service Bars.  This item also contains, in pertinent part, the entries, “BS WOLC   CIB   PH   PH  AM   A/ACOM   GC.”  It is further noted that this item contains the unknown acronym, “BPW.”

14.  The applicant’s military personnel records contain a DD Form 214 (Copy 2 - Service Copy) with an effective date of 30 September 1994 and a DD Form 215 (Correction to DD Form 214), dated 13 May 1995, that show he entered active duty this period on 7 January 1980, and he was honorably retired on
30 September 1994 and transferred to the USAR Control Group (Retired).  At the time he had completed 14 years, 8 months, and 24 days of net active service this period; 2 years, 3 months, and 9 days of total prior active service; and 9 years,
5 months, and 20 days of total prior inactive service.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), coupled with Item 18 (Remarks) shows he was awarded the Bronze Star Medal (1st Oak Leaf Cluster), Purple Heart, Meritorious Service Medal, Air Medal, Army Commendation Medal (2nd Oak Leaf Cluster), Army Achievement Medal (1st Oak Leaf Cluster), Good Conduct Medal (5th Award), Army Reserve Components Achievement Medal (2nd Oak Leaf Cluster), National Defense Service Medal (2nd Award), Vietnam Service Medal, Armed Forces Reserve Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, Army Reserve Components Overseas Training Ribbon, Republic of Vietnam Campaign Medal, Senior Parachutist Badge, Parachutist Badge, Air Assault Badge, and the Special Forces Tab.

15.  During the processing of this case, an ABCMR staff member attempted to contact the applicant via telephone in an effort to clarify matters relating to his application (i.e., the Bronze Star Medal (two awards versus one award) and award of the Air Medal).  An electronic voice mail message was left for the applicant; however, the applicant failed to respond to the ABCMR inquiry.  On
5 June 2009, the applicant responded and confirmed that one award of the Bronze Star Medal, along with the Purple Heart should be removed from his
DD Form 214.  However, with regard to the Air Medal, the applicant stated he believed he received the award for some air assault missions he participated in while serving in the RVN. 

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

17.  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, including the Bronze Star Medal.

18.  Army Regulation 600-8-22 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.

19.  Army Regulation 600-8-22 provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's REFRAD, 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.

   a.  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.

   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.

21.  Army Regulation 635-5, in effect at the time the applicant retired from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Enlisted Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

   a.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.


   b.  Item 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awarded or Authorized) states that entries will be for all periods of service.  Check the Soldier’s military service records for the validity of awards.  Do not abbreviate when listing the entries.  List the entries in order of precedent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected by removing the Bronze Star Medal and Purple Heart from his DD Form 214 with an effective date of 30 September 1994 because he does not believe he is eligible for the Bronze Star Medal and he knows he is not eligible for the Purple Heart.

2.  The evidence of record shows that General Orders awarded the applicant the Bronze Star Medal.  The evidence of record also shows the applicant’s DD Form 214 with an effective date of 31 March 1970 shows award of the Bronze Star Medal.  The evidence of record further shows the applicant’s DD Form 214 with an effective date of 30 September 1994 shows award of the Bronze Star Medal 1st Oak Leaf Cluster (i.e., two awards). 

   a.  A thorough search of the USA HRC, ADCARS, for the Vietnam Conflict failed to produce any award orders pertaining to the applicant showing he was awarded a second award of the Bronze Star Medal.  In addition, there are no orders in the applicant’s military personnel records showing he was awarded a second award of the Bronze Star Medal (i.e., Bronze Star Medal with Oak Leaf Cluster).

   b.  The applicant states he does not believe he is eligible for the Bronze Star Medal.  On 5 June 2009, he stated that he may be eligible for one Bronze Star Medal but not two.  Therefore, in view of the foregoing, it would be appropriate to correct the applicant’s DD Form 214 with an effective date of 30 September 1994 to show only one award of the Bronze Star Medal.

3.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.

   a.  The applicant’s DA Form 20 does not show an entry in item 40 or list the Purple Heart in item 41; the applicant's name is not listed on The Adjutant General's Office, Casualty Division, Casualty Reference Name Listing for Vietnam; and there are no orders in the applicant’s military personnel records or in the USA HRC, ADCARS, that show he was awarded the Purple Heart.
   
   b.  The applicant states he knows he is not eligible for the Purple Heart.  Thus, in view of the foregoing, it is concluded that the entry on the applicant’s DD Form 214 showing award of the Purple Heart is erroneous.  Therefore, it would be appropriate to correct the applicant’s records by deleting the Purple Heart from his DD Form 214 with an effective date of 30 September 1994.  

4.  There are no orders in the applicant’s military personnel records showing he was awarded the Air Medal.

   a.  The applicant’s DA Form 20 does not list the Air Medal in item 41 and a thorough search of the USA HRC, ADCARS, for the Vietnam Conflict failed to produce any award orders pertaining to the applicant showing he was awarded Air Medal.

   b.  Coordination with the applicant revealed that he believed he received the award for some air assault missions he participated in while serving in the RVN. Therefore, no action is being taken with respect to the Air Medal shown on the applicant's DD Form 214 with an effective date of 30 September 1994.

5.  The evidence of record shows that the Separation Documents regulation instructions for item 13 of the DD Form 214 state, in pertinent part, to check the Soldier’s military service records for the validity of awards.

   a.  The applicant’s military personnel records contain copies 1, 2, and 5 of his DD Form 214 with an effective date of 31 March 1970.  While it cannot be determined from the evidence of record why the copy of Copy 1 (Individual's Copy) that is filed in the applicant’s records contains (in item 24) an additional second row of entries (i.e., “BS/WOLC   CIB   PH   AM   A/ACOM   GC”), it is concluded that this particular copy of the DD Form 214 is invalid.

   b.  Therefore, in view of the foregoing, it would be appropriate to annotate this document with the word “VOID” to show that it is not a valid copy of the applicant’s DD Form 214 with an effective date of 31 March 1970.

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:

   a.  writing the word “VOID” on the copy of Copy 1 (Individual Copy) of the applicant’s DD Form 214 with an effective date of 31 March 1970 that is filed in the applicant’s military personnel records to show that it is not a valid copy of the applicant’s DD Form 214 with an effective date of 31 March 1970;

   b.  deleting from item 13 of his DD Form 214 with an effective date of
30 September 1994 the Bronze Star Medal 1st Oak Leaf Cluster and Purple Heart; and

   c.  adding to item 13 of his DD Form 214 with an effective date of
30 September 1994 the Bronze Star Medal.

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 removal of the Bronze Star Medal.



      _________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)                                         AR20090003158



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ABCMR Record of Proceedings (cont)                                         AR20090003158



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