IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009512 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a second award of the Purple Heart.  He also requests award of the Air Medal and the Bronze Star Medal with "V" Device or the Silver Star. 

2.  The applicant states that his first Purple Heart is not listed on his DD Form 214.  He adds that after conducting many helicopter assaults, he was supposed to receive his wings (the Air Medal).  He also adds that an unknown officer was supposed to put him in for a Bronze Star Medal with "V" Device or a Silver Star. 

3.  The applicant provides a copy of his DD Form 214, dated 19 June 1969, and a copy of General Orders Number 433, dated 19 April 1969, showing award of the Purple Heart.

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 records show he was inducted into the Army of the United States on 20 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty on 19 June 1969 in the rank/grade of private first class (PFC)/E-3 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  The applicant's records also show he served in the Republic of Vietnam from on or about 5 March 1968 to on or about 28 February 1969.  He was assigned to Company B, 2nd Battalion, 501st Infantry, from on or about 20 March 1968 to on or about 14 October 1968; Company C, 54th Infantry, from on or about 14 October 1968 to on or about 15 November 1968; and the U.S. Army Depot, Qui Nhon, from on or about 15 November 1968 to on or about 28 February 1969. 

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with (1960) Device, the First Class Gunner Marksmanship Qualification Badge with Machinegun Bar (M-60 and M-16), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), two overseas service bars, the Combat Infantryman Badge, and the Purple Heart.  Item 24 does not show a second award of the Purple Heart, the Air Medal, the Bronze Star Medal with "V" Device, and/or the Silver Star. 

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he suffered a fragment wound to the left side of his trunk on      27 March 1968 and a fragment wound to his neck on 8 June 1968.  

6.  The applicant's name is listed twice on the Vietnam casualty roster as follows:

	a.  under code "24" indicating he was slightly wounded in action but his wounds did not require hospitalization.  The date of his injury is listed as 27 March 1968; and 

	b.  under code "23" indicating he was not seriously wounded in action but required hospitalization.  The date of his injury is listed as 8 June 1968. 

7.  The applicant's records contain a Department of the Army message, dated 31 March 1968, stating that the applicant suffered a metal fragment wound to his trunk as a result of an enemy grenade during a search and destroy mission in the Republic of Vietnam on 27 March 1968.  He was treated at the battalion aid station and released.

8.  Headquarters, 101st Airborne Division, General Orders Number 433, dated 19 April 1968, show the applicant was awarded the Purple Heart for wounds received in action on 27 March 1968.  

9.  The applicant’s records do not contain general orders showing a second award of the Purple Heart, the Air Medal, the Bronze Star Medal with "V" Device, and/or the Silver Star.

10.  The applicant’s flight record is not available for review with this case.

11.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Air Medal, Bronze Star Medal with "V" Device, and/or the Silver Star orders on file for the applicant.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that:

	a.  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.

	b.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	c.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  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.  

	d.  The Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, guidelines for award of the Air Medal.  It established that passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  

14.  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 a 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.

15.  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.
16.  Review of the applicant's records indicates his entitlement to additional awards and decorations that are not shown on his DD Form 214.

17.  A review of the applicant's service record shows no derogatory information that would disqualify him for the first award of the Good Conduct Medal.  Furthermore, Item 38 (Record of Assignments) of his DA Form 20 shows he received "Excellent" conduct and efficiency ratings throughout his military service.

18.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the time of the applicant's assignment to the 2nd Battalion, 501st Infantry, this unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 19 April 1968 to 15 August 1968, based on Department of the Army General Orders 21, dated 1969, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 18 March 1968 to 2 May 1970, based on Department of the Army General Orders 48, dated 1971. 

20.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows the applicant participated in the Vietnam Counteroffensive, from 30 January 1968 to 1 April 1968; the Vietnam Counteroffensive, Phase IV, from 2 April 1968 to 30 June 1968; the Vietnam Counteroffensive, Phase V, from 1 July 1968 to 1 November 1968; the Vietnam Counteroffensive, Phase VI, from 2 November 1968 to 22 February 1969; and the TET 69 Counteroffensive, from 23 February 1969 to 8 June 1969, campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  It also states that a silver service star denotes five bronze service stars.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show a second award of the Purple Heart and that he should be awarded the Air Medal and the Bronze Star Medal with "V" Device or the Silver Star.

2.  General orders awarded the applicant the Purple Heart for wounds received in action on 27 March 1968 in the Republic of Vietnam.  However, the applicant suffered a second fragment wound to his neck on 8 June 1968 as a result of hostile action and his name is listed on the Vietnam casualty roster for both injuries.  Therefore, he is entitled to a second award of the Purple Heart and correction of his DD Form 214 to show both two awards instead of one. 

3.  General orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards. 

4.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, his records show he participated in five campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to a silver service star to be affixed to his Vietnam Service Medal.

5.  The evidence of record confirms that the applicant served honorably during the period 20 September 1967 through 19 June 1969.  He completed a combat tour in the Republic of Vietnam and received "Excellent" conduct and efficiency ratings throughout his military service.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award.

6.  With respect to the Silver Star or the Bronze Star Medal with "V" Device, the decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star and/or the Bronze Star Medal with "V" Device.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to awarding him the Silver Star or the specific acts of heroism and/or achievement that led to awarding him the Bronze Star Medal with "V" Device.   As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

7.  With respect to the Air Medal, there are no general orders that show the applicant was awarded the Air Medal.  In the absence of records or other independent evidence that would confirm he completed the number of missions necessary to be awarded the Air Medal, there is insufficient evidence upon which to base award of the Air Medal in this case.  

8.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Air Medal and the Bronze Star Medal with "V" Device or the Silver Star, this in no way affects the applicant’s right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  awarding the applicant the Purple Heart for wounds received in action on 8 June 1968 in the Republic of Vietnam;

	b.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 20 September 1967 to 19 June 1969; and

	c.  adding to his DD Form 214 award of the Purple Heart, the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and a silver service star to be affixed to his already-awarded Vietnam Service Medal.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Air Medal and the Bronze Star Medal with "V" Device, or the Silver Star.




      _______ _   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)                                         AR20090009512



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ABCMR Record of Proceedings (cont)                                         AR20090009512



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