IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090005420 


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, award of the Bronze Star Medal (BSM) with "V" (Valor) Device and Purple Heart (PH). 

2.  The applicant states, in effect, that he was hit by shrapnel from an exploding bulldozer that was behind him.  The exploding bulldozer was hit by a rocket propelled grenade (RPG).  He indicates he dismounted from his bulldozer to provide aid to his fellow Soldier who had been sprayed with shrapnel, fire and fluids during the explosion.  He further states that after the severely wounded Soldier was evacuated, his wounds were treated and cleaned.  He states that if a record of his medical treatment ever existed it was most likely destroyed when the track where their medical records were stored was hit by a rocket or mortar.

3.  The applicant provides a self authored statement, witness statement, and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  The applicant's military records show he initially enlisted in the Regular Army (RA) and entered active duty, on 23 July 1969, and was trained in and served in military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic). 

3.  On 23 March 1970, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he completed 8 months and 1 day active duty service during the period and that he earned the National Defense Service Medal (NDSM) and Vietnam Service Medal (VSM).  On 24 March 1970, he reenlisted in the RA. 

4.  The applicant’s DA From 20 (Enlisted Qualification Record) includes an entry in Item 31 (Foreign Service) which shows he served in the Republic of Vietnam (RVN) from 21 December 1969 to 22 December 1970.  Item 40 (Wounds) is blank and Item 41 (Awards and Decorations) shows he earned the Expert Marksmanship Qualification Badge with Rifle and Pistol Bars.  The PH and BSM with "V" Device are not listed in item 41, and item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 20 January 1974, subsequent to his release from active duty (REFRAD), while he was serving in the Army National Guard.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no orders or other documents that indicate he was ever wounded in action or ever recommended for or awarded the PH.  In addition, there are no medical treatment records on file in the MPRJ that indicate he was ever treated for a combat-related wound/injury.

6.  The applicant's MPRJ is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM with "V" Device by proper authority while serving on active duty.  

7.  The applicant's MPRJ contains Headquarters, 20th Engineer Brigade, General Orders Number 1414, dated 19 November 1970, which awarded the applicant the Army Commendation Medal (ARCOM) for meritorious service in the RVN from 21 September 1969 through 20 December 1970.

8.  On 21 March 1973, the applicant was honorably REFRAD after completing a 3 years, 7 months, and 29 days of active military service.  The DD Form 214 issued at the time contains the following list of awards in Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized):  ARCOM, Armed Forces Expeditionary Medal (AFEM), RVN Campaign Medal with Device 1960, 2 Overseas Service Bars, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Launcher (M-79).  The PH and BSM with "V" Device are not included in the list of awards contained in item 24 and there is no indication the applicant pursued award of the PH or BSM with "V" Device at any time prior to his separation from active duty.

9.  The applicant provides a witness statement from a retired lieutenant colonel who states he was present when the aforementioned bulldozer was hit by a RPG and that the applicant provided medical assistance to the severely burned Soldier.  The witness stated that several were hit by shrapnel and treated locally. He also states the applicant like many others was covered in blood, he no doubt was also hit by shrapnel, and he deserves award of the PH.

10.  During the review of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This search failed to reveal the applicant’s name among this official list of RVN battle casualties.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  

12.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM and states, in pertinent part, that it may be awarded for heroism, meritorious service or meritorious achievement.  

13.  Paragraph 3-17 of the awards regulation contains guidance on award of the ARCOM and states, in pertinent part, that it may be awarded for acts of valor, meritorious service or meritorious achievement that are of a lesser degree than that required for award of the BSM.  


14.  Paragraph 3-19 of the awards regulation contains the rules for processing award recommendations and states, in pertinent part, that a DA Form 638 will be used to initiate, process, and approve recommendations for Army individual decorations.  It further states that the designated award approval authority must approve the award on the DA Form 638 submitted.  

15.  Table 3-6 of the awards regulation identifies the wartime award approval authorities and identifies the Senior Army Commander and commanders of a separate force serving in the rank of lieutenant general as the approval authority for the BSM.  It also allows further delegation of BSM approval to major general or brigadier general (serving in MG positions) commanders of separate units.  

16.  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’s contentions that he is entitled to the BSM with "V" Device and PH were carefully considered.  However, the evidence of record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the BSM by proper authority while serving on active duty.  

2.  Further, there is no evidence that shows the applicant was ever recommended for or awarded either the ARCOM or BSM for heroism/valor that would allow wear of a "V" Device with either award.  

3.  While the available evidence is insufficient for awarding the applicant the BSM with "V" Device for heroism, this does not affect the applicant’s right to pursue his claim for the BSM with "V" Device by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant's contention that he was wounded in action and should be awarded the PH was also carefully considered.  However, by regulation, in order to award the PH it is necessary to establish that a Soldier was wounded as a result of enemy action, that the wound required treatment by a medical officer, and that the record of medical treatment was made a matter of official record.

5.  The applicant's MPRJ is void of any orders, or other documents indicating that he was ever recommended for, or awarded the PH by proper authority.  Further, there are no medical treatment records on file that show he was ever treated for a combat-related wound or injury while he was serving on active duty.  His name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

6.  The witness statement provided from a retired lieutenant colonel recalls the action in which another Soldier was killed and confirms the applicant assisted in treating this Soldier.  He also indicates that many Soldiers were hit by shrapnel and were covered with blood and that the applicant was covered with blood so he has no doubt that he was also hit by shrapnel.  However, the third-party does not confirm that he actually witnessed the applicant being wounded in action, or treated by military medical personnel for wounds received in action, which is required by regulation to support award of the PH.  As a result, absent any evidence of record corroborating the fact the applicant was wounded in action, or treated for a combat related wound by military medical personnel, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate award the applicant the PH at this time.  

7.  The applicant and all others concerned should know that this action related to award of the BSM with "V" Device and PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of the applicant's service in arms.

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)                                         AR20090005420



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005420



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1