IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005079 


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, through his Member of Congress, correction of his military records to show award of the Purple Heart and the Bronze Star Medal.

2.  The applicant states that he was wounded in combat on 15 July 1967 during a missile attack while serving in the Republic of Vietnam.  Medics from his company treated his wounds and he returned to duty.  During that period of time he was recommended for award of the Purple Heart.  The applicant further states his company commander also recommended him for award of the Bronze Star Medal prior to his departure from Vietnam but he never received the awards.

3.  The applicant states that prior to his retirement from the military in 1979 he contacted his former company commander and informed him that he did not receive the Purple Heart or the Bronze Star Medal.  In turn, his former commander submitted recommendations for the awards in his behalf to the U.S. Army Awards and Decorations Branch; however, the recommendation for the awards were denied.

4.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) for the period ending 31 May 1979; two DA Forms 638 (Recommendation for Award), dated 17 April 1979; a U.S. Army Human Resources Command letter, dated 28 July 2008; a letter of support from a former fellow Soldier, dated 16 January 2008; and a letter of support from his former company commander, dated 3 February 2009.


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 entered active duty on 30 July 1958.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 910.00 (Medical Specialist).  He was later awarded MOS 11B (Infantryman).

3.  The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Company, 2nd Battalion, 22nd Infantry, 4th Infantry Division, on 22 September 1966.  He was reassigned to Company A, 3rd Battalion, 21st Infantry, 196th Light Infantry Brigade, on 12 March 1967.

4.  On 22 September 1967, the applicant departed Vietnam.

5.  Headquarters, 196th Light Infantry Brigade, General Orders Number 1297, dated 25 September 1967, show the applicant was awarded the Army Commendation Medal for meritorious service while serving as a platoon leader and supply sergeant during the period March 1967 through September 1967.

6.  Two DA Forms 638, dated 17 April 1979, show that the applicant's former company commander recommended him for award of the Purple Heart for wounds received in July 1967.  In addition, the commander recommended the applicant for award of the Bronze Star Medal for meritorious service while serving as a platoon leader and supply sergeant during the period March 1967 through September 1967.

7.  On 9 May 1979, the U.S. Army Readiness Region VIII denied the applicant's request for awards of the Purple Heart and the Bronze Star Medal based on timeliness and the lack of medical treatment documents.

8.  On 31 May 1979, the applicant retired.
9.  The applicant's DD Form 214 for the period ending 31 May 1979 shows he was awarded the National Defense Service Medal, the Army Good Conduct Medal (6th Award), the Army Commendation Medal, the Meritorious Unit of Commendation, the Combat Infantryman Badge, the Vietnam Service Medal with one Silver Service Star, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Expert Marksmanship Qualification Badge with Rifle Bar.

10.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart or the Bronze Star Medal.

11.  There is no evidence in the applicant's service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam casualty roster.

12.  Item 9 (Awards and Decorations) of the applicant's DA Form 2-1 (Personnel Qualification Record) does not show award of the Purple Heart or the Bronze Star Medal.

13.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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 or the Bronze Star Medal.

14.  The applicant's Army medical treatment records are unavailable.

15.  On 28 September 1982, the U.S. Army Reserve Components Personnel and Administration Center Military Awards Branch denied the applicant's request for award of the Purple Heart and the Bronze Star Medal based the lack of medical evidence for the Purple Heart and based on the fact that he received the Army Commendation Medal for the same period as the proposed Bronze Star Medal.

16.  The applicant provides a witness statement from a former fellow Soldier, dated 16 January 2008.  The author stated that he and the applicant were assigned to the same company in Vietnam.  The fellow Soldier further states that the applicant was wounded in July 1967 and upon his return to the unit he was reassigned to work in the supply room.

17.  On 28 July 2009, the U.S. Army Human Resources Command Military Awards Branch denied the applicant request for the Purple Heart and the Bronze Star Medal.  The Military Awards Branch indicated that the applicant did not provide treatment documents supporting award of the Purple Heart and that he received the Army Commendation Medal for the same period of service as the Bronze Star Medal request.  The Military Awards Branch informed the applicant that Army Regulation 600-8-22 (Military Awards) prohibits awarding duplicate awards for the same period of service.  However, if he wished to have his award of the Army Commendation Medal upgraded to an award of the Bronze Star Medal he could request reconsideration for a possible upgrade.  The Military Awards Branch further recommended that he contact the National Archives at College Park, Maryland, to locate the original recommendation for both awards and or other documentation pertaining to his service.

18.  The applicant provided a letter of support from his former company commander, dated 3 February 2009.  The author states that the applicant served as a platoon leader and his performance of duty was outstanding in Vietnam.  The former company commander states that he was contacted by the applicant and was told the applicant did not receive the Bronze Star Medal or the Purple Heart for wounds he received in July 1967.

19.  The former company commander further stated he was certain that the applicant was recommended for the Bronze Star Medal.  Furthermore, he was sure the wounds the applicant suffered were sufficient to require medical treatment and light duty that precluded him from participating in combat operations in the field.

20.  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.

21.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  This regulation also provides, in pertinent part, that the "V" device is worn to denote participation in acts of heroism involving conflict with an armed enemy.

22.  Title 10, U.S. Code, section 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’s claim of entitlement to award of the Purple Heart for injuries he received while in Vietnam was carefully considered.  There is no medical evidence to show he was treated for injuries he received in July 1967 and returned to duty.  While his injury is unfortunate, there is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action.

2.  The applicant's former commander's letter of support that the applicant was wounded and treated for his wounds is acknowledged.  However, while the witness statement submitted by the former fellow Soldier indicates that the applicant was wounded and returned to duty, it fails to mention that he was present at the time of the actual incident or that the injuries were caused by hostile fire.

3.  Unfortunately, in the absence of military records which show the applicant was treated for injuries as a result of hostile action, the letters he provided are insufficient bases for award of the Purple Heart in this case.

4.  The applicant contends that his record should be corrected to show award of the Bronze Star Medal.  The evidence of record shows he was awarded the Army Commendation Medal for meritorious service with his unit which is the same period of service as the proposed Bronze Star Medal.  His former commander even indicated that he was certain the applicant was recommended for the Bronze Star Medal.  It appears that the recommendation for award of the Bronze Star Medal may have been downgraded by the approving authority to the Army Commendation Medal for his service in Vietnam.

5.  There is no evidence in the available records and the applicant has not provided evidence that shows he was awarded the Bronze Star Medal for meritorious service.  Unfortunately, there is insufficient evidence to warrant awarding him the Bronze Star Medal at this time.

6.  While the available evidence is insufficient for showing he was awarded the Bronze Star Medal, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 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)                                         AR20090005079



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ABCMR Record of Proceedings (cont)                                         AR20090005079



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