IN THE CASE OF:	  

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090009041 


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 to show award of two additional Purple Hearts, Combat Infantryman Badge, Bronze Star Medal with "V" Device; his rank/grade as sergeant (SGT)/E-5; a second tour in Vietnam; and his date of separation as 11 February 1970.

2.  The applicant states, in effect, that the information he provides demonstrates the errors in his records.  He was assigned to a small unit that had no clerk to properly follow through on administrative matters.  He also states that Purple Hearts are not given for accidents.

3.  The applicant provides copies of a statement from his doctor, dated 19 August 2002.  He also provides copies of 23 statements from 10 other individuals, dated between 6 February 2002 and 8 August 2008, attesting to his service in Vietnam and the injuries he received in combat.  These statements appear to have been obtained to support the applicant's attempt to obtain Department of Veterans Affairs benefits.

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 service medical records are believed to be on indefinite loan to the Department of Veterans Affairs and as such are not available for this Board's review.

3.  The applicant, with parental consent, enlisted in the Regular Army (RA) on 20 November 1967.  He completed training and he was awarded military occupational specialty (MOS) 36K (Field Wireman).

4.  Records show the applicant served in Vietnam from 8 June 1968 through
18 October 1968.

5.  The record contains a Western Union Telegram notification, dated 18 September 1968, stating that on 17 September 1968 he was slightly wounded and hospitalized with metal fragment wounds on both legs from a hostile booby trap.  It shows his rank/grade at that time was private first class (PFC)/E-3.

6.  Headquarters, 3rd Field Hospital, General Orders Number 207, dated 18 September 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 17 September 1968.  The orders show his rank/grade as PFC (E-3) with Company B, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade.

7.  On 19 August 1969, while processing to return to Vietnam, the applicant was referred to a Medical Evaluation Board (MEB).  On 3 October 1969, the MEB found the applicant had received shrapnel wounds to all extremities with significant left leg nerve and artery damage.  It was determined that he was unfit for further duty due to residuals of wounds received on 17 September 1968 and he was referred to a Physical Evaluation Board (PEB).

8.  On 16 October 1969, the PEB found the applicant's conditions to be permanent in nature, afforded him a 20 percent disability evaluation, and recommended he be discharged with severance pay.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 November 1969 shows:


	a.  his rank as specialist four (SP4)/E-4 with a date of rank of 17 December 1968;

	b.  he was honorably discharged due to physical disability with severance pay; 

	c.  he completed 1 year, 11 months, and 21 days of creditable service with no time lost;

	d.  he served in Vietnam for 4 months and 10 days; and

	e.  his authorized awards as the Purple Heart, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), National Defense Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

10.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

	a.  he enlisted in the RA for three years on 20 November 1967 with an option of airborne training;

	b.  he received shrapnel wounds to both legs on 17 September 1968; 

	c.  he was advanced to SP4/E-4 on 17 December 1968 while assigned to Walter Reed Army Medical Center;

	d.  his authorized awards as the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Marksman Marksmanship Qualification Badge with Rifle Bar; and

	e.  his duty assignments are shown as:

		(1)  27 November 1967, basic combat training;

		(2)  10 February 1968, advanced individual training with completion on 19 April 1968 (he declined airborne training on 13 April 1968);

		(3)  8 May 1968, in a casual status enroute to Vietnam;

		(4)  19 June 1968, as a wireman with Headquarters and Headquarters Company, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade;


		(5)  25 June 1968, as a wireman with Company B, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade;

		(6)  (an undated entry), as a patient at the 249th General Hospital, Japan;

		(7)  18 October 1968, as a patient at Walter Reed Army Medical Center;

		(8)  17 January 1969, in a casual status enroute to Fort Leonard Wood, MO;

		(9)  21 January 1969, as a locator clerk with Company A, Special Troop, Army Training Command, Fort Leonard Wood;

		(10)  2 July 1969 in a casual status enroute to Vietnam;

		(11)  19 August 1969, as a patient at Letterman General Hospital, San Francisco, CA; and

		(12)  10 November 1969, discharged due to physical disability.

11.  On 4 January 1973, a DD Form 215 (Correction to DD Form 214) prepared by The Adjutant General, corrected the applicant's records to show that he was retired on 10 November 1969 by reason of permanent disability with a 40 percent disability percentage rating.

12.  In his nine statements, J____ A. P___ identifies himself as an Army retired sergeant first class (SFC)/E-7 and refers to the applicant as a SGT.  He states that he was present when the applicant was promoted to SGT and when he was given a field promotion to staff sergeant (SSG)/E-6.  He further states that he was present when the applicant was recommended for the Bronze Star Medal with "V" Device for his actions on 5 - 7 May 1968 and that the applicant was given the Silver Star while awaiting a consideration for the Distinguished Service Cross for his actions on 6 May 1968.  If the applicant was put in for Purple Hearts he would have at least eight; however, the applicant did have five Purple Hearts and he [writer] himself had recommended the applicant receive two Purple Hearts in addition to the one he received on 18 September 1968.  He also states the applicant had two Bronze Star Medals with "V" Device and other medals for valor.  Further, in his 1 September 2002 statement, he states that the applicant was exposed to Agent Orange while on patrol in March 1968.  In a 4 April 2005 statement he indicates the applicant served with Company B, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade in 1967 - 1968 in MOS 11B.

13.  In his statement, dated 10 August 2005, K______ L. R_________ refers to the applicant as a SGT and indicates the applicant was already a squad leader when he reported to the unit in May 1968.  The applicant was wounded on several occasions and he was medically evacuated three times.  On 6 February 1968, the applicant was hit twice by weapons fire and with white phosphorus.  He refused more than minor treatment by the field medic until the wounds became infected.  On 15 June 1968, he was wounded again and treated at the "24th."  He was seriously wounded on 17 September 1968 and again medically evacuated to the "24th" and then to Japan.

14.  In a letter, dated 8 August 2006, Colonel (Ret) W______ S. S________, states he commanded the 4th Battalion, 12th Infantry Regiment, 199th Light Infantry Brigade in 1967.  Many men, like the applicant, did not receive formal recognition for their heroism, especially during the Tet Offensive.  Paperwork was lost or destroyed.  The Combat Infantryman Badge could not go to a better combat infantryman than the applicant.  In a second statement, dated 8 August 2008, he states that the applicant had been shot and hit by shrapnel a number of times, as well as having been knifed, garroted, and bayoneted.  On two occasions he was wounded seriously enough to have been medically evacuated back to the United States.  The colonel had approved the applicant's temporary promotion to SSG and recommended him for a Bronze Star Medal with "V" Device.

15.  In an undated letter, SFC J_____ V________ identifies himself as the platoon sergeant and platoon leader for Bravo Company, 4th Battalion,
12th Infantry Regiment, 199th Light Infantry Brigade.  He states that he was confirming that the applicant served with that unit in 1967 - 1968 and 1970.  The applicant joined the unit in late December 1967 or early January 1968, having spent the previous 4 months in a Recon[naissance] Unit.  The applicant was repeatedly recognized with awards for valor, including the award of the Bronze Star Medal and a Silver Star.  He had been wounded in the chest, ribs, left leg, and right arm.

16.  In an undated letter, M______ P. E____ states he joined the applicant's unit in 1968.  He witnessed the applicant's (a SGT) actions in combat, serving together during the "bloodiest 8 months of the war."  He knows that the applicant had "two hard" wounds and he received the Bronze Star Medal with "V" Device from Colonel W______ S________.

17.  In an undated letter, H_____ G. V_____ identifies himself as the company medic and states that the applicant sustained injuries on 17 June 1969 when he was hit by a white phosphorous booby-trap.  He treated the applicant's wounds with copper sulfate and with the application of mud packs to allow the applicant to continue to fight. 

18.  In an undated letter, SFC (Ret) B____ J. H___ states that he recommended the applicant be promoted to SGT in early 1968 and that the applicant was given a temporary promotion to SSG.  The applicant was not given a permanent promotion to SSG because he did not have the necessary time when he was hospitalized for a third time.  In a second statement, he states he handpicked the applicant, then an SP4, for Bravo Company on or about 12 November 1967 and flew out to the company with him.  He is aware that the applicant was recommended for our highest honors.  He is sure that the applicant received two Legion of Merits, two Silver Stars, three Bronze Star Medals with "V" Device, and two Purple Hearts.  

19.  In a letter, dated 4 April 2004, D_____ A____ N____ identifies himself as a retired first lieutenant and platoon leader for Bravo Company, 4th Battalion, 12th Infantry Regiment, 199th Light Infantry Brigade.  He identifies the applicant as a SGT with an MOS of 11B having served with him from February through May of 1968.

20.  In a letter, dated 15 July 200(?) R______ C. E____ identifies himself as a former major and the company commander for Company B, 4th Battalion, 12th Infantry Regiment, 199th Light Infantry Brigade in 1967 and 1968.  He states that the applicant was an outstanding Soldier and he was privileged to see him promoted to SGT.  Bravo Company was rarely in the fire support base, being called to be constantly in the field.  In a second undated statement, he states that the applicant could have had an early release under the three wound rule but refused to do so because of his care for his subordinates and his dedication to duty.

21.  In a letter, dated 19 August 2002, Doctor A_____ R_____ H___ states that he has been treating the applicant since 24 October 1994 for major depression and post traumatic stress disorder which is directly related to his combat experiences in Vietnam.  He further states that he continues with disturbing combat-related dreams, emotional volatility, and is socially withdrawn.

22.  A review of the Vietnam Casualty List failed to locate any reference to the applicant for any wounds including the ones incurred on 17 September 1968.

23.  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 any awards pertaining to the applicant.

24.  A review of the interactive Personnel Electronic Management System (iPERMS) failed to locate the records of all of the former Soldiers providing supporting statements who reportedly are retired Army personnel.

25.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

26.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards and provides the following:

	a.  the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  Award of the Bronze Star Medal for acts of merit or meritorious service for a lesser degree than that required for the Legion of Merit must have been meritorious and accomplished with distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years;

	b.  the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent; and

	c.  the Combat Infantryman Badge is awarded to infantry officers, warrant officers, and enlisted personnel who have an infantry military occupational specialty (MOS).  They must have actively participated in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV 672-1 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.

27.  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.

28.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the information he provides demonstrates the errors in his records.  He was assigned to a small unit that had no clerk to properly follow through on administrative matters.  He further states Purple Hearts are not authorized for accidents.

2.  The applicant's official records show he served in Vietnam for four months and 10 days, arriving on or about 6 June 1968, being wounded on 17 September 1968, and being medically evacuated to Japan no later than 18 September 1968. He was pending reassignment to Vietnam on 2 July 1969; however, prior to departing the United States, he underwent a medical examination that resulted in his being referred to an MEB/PEB.  He was subsequently found medically unfit for duty and he was medically discharged (later corrected to medically retired) on 10 November 1969.

3.  While it is possible the applicant was utilized in an infantryman position in Vietnam, there is no official military documentation to show he was officially awarded an infantryman MOS or that he served in an infantry duty MOS.  There is insufficient evidence to show he was eligible for award of the Combat Infantryman Badge.  Therefore, there is no basis for granting this portion of the applicant's requested relief.

4.  All of the former Soldiers providing statements in support of the applicant's case and/or their positions while serving in Vietnam cannot be validated based on the available evidence or by a name search of iPERMS for the retired Soldiers.

5.  Further, the reported dates and periods of service in Vietnam in the supporting statements do not coincide with the period reflected on the DA Form 20, the DD Form 214, or elsewhere in the applicant's official records.  For example, one individual indicates the applicant was serving in Vietnam in December 1967, while another individual states he personally selected the applicant for his unit on 12 November 1967, although the applicant's enlistment documents show he enlisted on 20 November 1967.  Additionally, several other individuals describe incidents or indicate the applicant was in Vietnam prior to mid-May 1968; yet his records show he was not assigned to Vietnam until at the earliest 8 June 1968.

6.  Without the applicant's service medical records, there is insufficient evidence to show that he was treated for any combat wounds except those incurred on 17 September 1968.  Without an official military record showing medical treatment for a wound incurred as a result of hostile action, there is insufficient documentation to support a finding of entitlement to any additional awards of the Purple Heart.

7.  The applicant has not provided and the record does not contain any documentation showing he was considered for or awarded any awards for valor, including either the Silver Star or the Bronze Star Medal with "V" Device.  Therefore, there is no basis for correcting his records to show these awards.

8.  The applicant has not provided and the record does not contain any official documentation to show he was promoted to or served as a SGT, much less a SSG.  Therefore, there is no basis for correcting his records to show a higher rank than SP4.

9.  The applicant has not provided and the record does not contain any official military documentation to show that he was retained on active duty beyond 10 November 1969.  Therefore, there is no basis for amending his retirement date beyond the date reflected on his DD Form 214.

10.  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.

11.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal with "V" Device 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)                                         AR20090009041



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ABCMR Record of Proceedings (cont)                                         AR20090009041



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