IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090006348 


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 (PH) and Air Medal (AM).

2.  The applicant states, in effect, these awards were not added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).   

3.  The applicant provides a DD Form 214 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 record shows he was inducted into the Army of the United States and he entered active duty on 20 October 1966.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).
3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 29 March 1968 through 12 October 1968. Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company D, 5th Battalion, 46th Infantry Regiment, 198th Infantry Brigade, performing duties in MOS 11B as a rifleman and automatic rifleman.   

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) does not show award of the PH or the AM.  The applicant last audited the DA Form 20 on 7 October 1968.  

5.  The applicant's official military personnel file (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH or AM by proper authority.   The OMPF is also void of any medical treatment records that show the applicant was ever treated for a combat-related wound while serving in the RVN, or of any flight records confirming he was on flight status or performed combat flight missions during his RVN tour.  

6.  On 9 October 1968, the applicant was honorably released from active duty, in the rank of private first class (PFC), after completing 1 year, 11 months, and 20 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time does not show award of the PH or the AM.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Reference Name Listing.  There is no entry pertaining to the applicant on this roster. 

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military personnel, and a record of this treatment must have been made a matter of official record.

9.  Paragraph 3-15 of the same regulation prescribes the Army's awards policy.  Paragraph 3-15 contains guidance on the AM.  It states, in pertinent part, that it is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  The AM is awarded to any person who, while serving in any capacity in or with the U.S. Army, will have distinguished himself or herself by meritorious achievement while participating in aerial flight.  Awards may be made to recognize single acts of merit or heroism, or for meritorious service.
10.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided local USARV awards policy.  It also established guidelines for award of the AM in the RVN.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Combat missions were divided into three categories:  Category I (air assault and equally dangerous missions); Category II (support rendered a friendly force immediately before, during or immediately following a combat operation); and Category III (support of friendly forces not connected with an immediate combat operation).  

11.  The USARV awards regulation stipulated that to be recommended for award of the AM, an individual must have completed a minimum of 25 Category I missions, 50 Category II missions, or 100 Category III missions.  Since various types of missions would have been completed in accumulating flight time toward award of an AM for sustained operations, different computations would have had to be made to combine Category I, II and III flight time and adjust it to a common denominator.  A Category I mission was defined as a mission performed in a "combat assault" (CA) role; a Category II mission was defined as a mission performed in "direct combat support" (DCS) role; and a Category III mission was defined as one performed in an "other combat support" (OCS) role.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for the AM was carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record fails to show the applicant was ever recommended for or awarded the AM while serving on active duty.  His DA Form 20 does not include the AM in Item 41, which he last audited on 8 October 1968, during his separation processing.  Further, there are no flight records on file in his OMPF and he has failed to provide any that would confirm his participation in sufficient qualifying combat flight missions to support award of the AM.  As a result, there is an insufficient evidentiary basis to support award of the AM. 

3.  The applicant's contention that he is also eligible for the PH was also carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required medical treatment by military personnel, and a record of this medical treatment must have been made a matter of official record.  However, in this case item 40 of the applicant's DA Form 20 is blank, and the PH is not included in item 41 of his DA Form 20, which indicates he was never wounded in action.  His OMPF is void of any orders or other documents indicating he was ever recommended for or awarded the PH by 
proper authority and of medical treatment records that show he was ever treated for a combat-related wound while serving in the RVN.  In addition, the PH is not included in the list of awards contained in item 24 of his DD Form 214 and his name is not listed on the RVN casualty roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis to support award of the PH in this case.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement related to award of the PH.   

5.  The applicant and all others concerned should know that this action related to award of the PH and the AM 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 his 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)                                         AR20090006348



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ABCMR Record of Proceedings (cont)                                         AR20090006348



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