IN THE CASE OF:	

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009355 


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.  He also requests that the dates he served in Vietnam be entered on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he served in Vietnam from 1 February 1970 to 
2 November 1970.  He states he was wounded and sent to a Saigon hospital and then to Japan.  He went to Australia for R&R (rest and recreation).  He states that he has enclosed a copy of his military service data from the Grand Rapids Outpatient Clinic that confirms his combat record.  He also indicated that his 
DD Form 214 has Vietnam medals listed.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and a computer printout entitled "Military Service Data, Screen."

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 enlisted in the Regular Army (RA) on 6 December 1968 for a period of 2 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 12A (Pioneer).

3.  On 8 August 1969, the applicant was assigned to the 227th Engineer Company in Hawaii.

4.  On 5 December 1969, the applicant was assigned to the 76th Engineer Company, 4th Brigade, 25th Infantry Division in Hawaii.

5.  On 2 March 1970, at the Special Processing Detachment at Fort Riley, KS, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from the 76th Engineer Company at Schofield Barracks, HI from on or about 26 January 1970 until on or about 26 February 1970.

6.  Headquarters, Fort Riley, Special Orders Number 63, dated 25 March 1970, relieved the applicant from attachment from the Special Processing Detachment and directed his return to his parent unit with a reporting date of 28 March 1970.

7.  On 1 July 1970, the applicant accepted NJP under Article 15, UCMJ, for being drunk and disorderly and striking a noncommissioned officer (NCO) on 30 June 1970 at Schofield Barracks.

8.  On 23 September 1970, the applicant accepted NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.

9.  On 20 November 1970, the applicant was en route to the continental United States and on 29 November 1970, he was released from active duty by Headquarters, U.S. Army Personnel Center, Oakland, CA.  He had completed
1 year, 11 months, and 24 days of active service that was characterized as honorable.

10.  Item 22c (Foreign and/or Sea Service) of the applicant's DD Form 214 shows he served 1 year, 3 months, and 26 days of foreign or sea service and the last theater in which he served was USARPAC (U.S. Army, Pacific).


11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

12.  There are no orders in the applicant's military service records awarding him the Purple Heart.

13.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) only shows the applicant was assigned to USARPAC - Hawaii from 4 August 1969 to 29 November 1970.

14.  Item 39 (Campaigns) of the applicant's DA Form 20 does not show he participated in any campaigns.

15.  Item 40 (Wounds) of the applicant's DA Form 20 does not contain any entries indicating that the applicant received any wounds during his tenure of service.

16.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

17.  The applicant's name does not appear on the Vietnam Casualty Roster. 

18.  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 the Purple Heart pertaining to the applicant.

19.  The military service data printout from the Grand Rapids Outpatient Clinic submitted by the applicant indicates he was in combat from 1 February 1970 to
2 November 1970 in Vietnam.  However, there are no official military documents submitted from which this data was derived.

20.  A history of the 76th Engineer Company, obtained from the internet, indicates the unit participated in only one Vietnam campaign, the Vietnam Counteroffensive, Phase II.  The dates of the campaign are from 1 July 1966 to 31 May 1967.

21.  Army Regulation 672-5-1 (Military Awards), then in effect, provided, in pertinent part, that the Purple Heart was awarded to any member of an Armed 
Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services had been wounded, killed, or who had died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

22.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directed that total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed be entered in Item 22c.

23.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award as the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States serving in Vietnam and the contiguous waters or airspace there over, after 3 July 1965 through 28 March 1973. Members of the Armed Forces of the United States in Thailand, Laos, or Cambodia, or the airspace there over, during the same period and serving in direct support of operations in Vietnam are also eligible for this award.  To qualify for award of the VSM an individual must meet one of the following qualifications: 

   (1)  Be attached to or regularly serve for 1 or more days with an organization participating in or directly supporting military operations. 
   
   (2)  Be attached to or regularly serve for 1 or more days aboard a Naval vessel directly supporting military operations. 
   
   (3)  Actually participate as a crewmember in one or more aerial flights into airspace above Vietnam and contiguous waters directly supporting military operations.
   
   (4)  Serve on temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that time limit may be waived for personnel participating in actual combat operations.

24.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Campaign Medal, correctly known as the Republic of Vietnam Campaign Medal with Device (1960).  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 

28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was in Vietnam from 1 February 1970 to
2 November 1970 and that he was wounded and sent to a hospital in Saigon.  He contends the printout from the Grand Rapids Outpatient Clinic confirms his combat record.  However, there are no official documents or evidence of record to support the data entered into that data sheet.

2.  During the period the applicant contends he was in Vietnam his records show he received NJP at Fort Riley on 2 March 1970 for being AWOL from 26 January 1970 to 26 February 1970.  He was then en route from Fort Riley back to Schofield Barracks from 25-28 March 1970.  He also received NJP at Schofield Barracks on 1 July 1970 and again on 23 September 1970.

3.  The dates of the only Vietnam campaign, 1 July 1966 - 31 May 1967, in which the 76th Engineer Company participated are well before the applicant's assignment to the unit.

4.  Although the applicant's DD Form 214 indicates he is authorized the Vietnam Service Medal and the Republic of Vietnam Campaign Medal, there is no evidence of record showing the unit to which he was assigned or the dates of his assignment in the Republic of Vietnam.

5.  Although it appears that an administrative error was made to item 24 of his DD Form 214 pertaining to the entries of the Vietnam Service Medal and the Vietnam Campaign Medal, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.
For this reason, the Board will not take any action to affect the administrative change to remove these two medals.  However, the applicant should be aware that there is no evidence of record to support the entitlement to these two medals.



6.  The entry in item 22c of the applicant's DD Form 214 shows the last overseas theater, USARPAC, in which he performed service.  The regulations in effect at the time of the applicant's release from active duty did not provide for an entry showing exact dates of service in any overseas area.

7.  A review of Item 40 of the applicant's DD Form 214, the Vietnam Casualty Roster, and ADCARS did not show the applicant was wounded as a result of 
hostile action.

8.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

9.  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 that requirement.

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)                                         AR20090009355



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ABCMR Record of Proceedings (cont)                                         AR20090009355



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