IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009905 


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 DD Form 214 (Report of Transfer or Discharge) to show award of the Purple Heart and the Bronze Star Medal with "V" Device.  He also requests that two awards of the Army Commendation Medal with "V" Device be upgraded to the Bronze Star Medal with "V" Device.  

2.  The applicant states, in effect, that sometime between March 1968 and October 1968 he was wounded in the head by shrapnel and that he received the Purple Heart and the Bronze Star Medal with "V" Device.  He contends that he lost the medals in Mexico years later.

3.  The applicant also states that several veterans and a service officer with the Veterans of Foreign Wars have told him that he should have been awarded the Bronze Star Medal with "V" Device for his actions on 9 March 1968 and 17 July 1968 instead of the Army Commendation Medal with "V" Device.  He contends that the Army Commendation Medal with "V" Device does not seem to reflect the serious combat sacrifice he conducted on those 2 days.     

4.  The applicant further states that orders for the Army Commendation Medal with "V" Device for heroism on 17 July 1968 show he was wounded and he was never awarded the Purple Heart.  

5.  The applicant provides two orders for the Army Commendation Medal with "V" Device for heroism on 9 March 1968 and on 17 July 1968; U.S. Army Reserve discharge orders; letters, dated 1 May 2009 and 5 June 2009, from a Member of Congress; and a copy of his 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 was inducted into the Army of the United States on 5 April 1967.  He arrived in Vietnam on 29 December 1967.  He served as a light weapons infantryman assigned to Company C, 1st Battalion (Airborne), 502nd Infantry in Vietnam from 31 December 1967 through 4 December 1968.  On 
10 December 1968, the applicant was released from active duty in the temporary rank of sergeant after completing 1 year, 8 months, and 6 days of creditable active service with no time lost.

3.  The applicant's DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, the Combat Infantryman Badge, and the Parachutist Badge as authorized awards.

4.  There are no orders for the Purple Heart in the available records.

5.  There are no orders for the Bronze Star Medal with "V" Device in the available records.  There is no evidence of record which shows the applicant was recommended for award of the Bronze Star Medal with “V” Device. 

6.  Review of the Awards and Decorations Computer-Assisted Retrieval System, 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 or the Bronze Star Medal with "V" Device.

7.  Headquarters, 101st Air Cavalry Division General Orders Number 4978, dated 24 August 1968, show the applicant received the Army Commendation Medal with "V" Device for heroism on 9 March 1968 in Vietnam.

8.  Headquarters, 101st Airborne Division General Orders Number 5341, dated 
4 September 1968, show the applicant received the Army Commendation Medal for meritorious achievement during the period 1 March 1968 to 31 July 1968.

9.  Headquarters, 101st Airborne Division General Orders Number 10456, dated 30 November 1968, show the applicant received the Army Commendation Medal with "V" Device for heroism on 17 July 1968 in Vietnam.  The citation for this award states, in pertinent part, that "Sergeant [applicant's last name] was wounded during the initial burst of enemy fire."

10.  Records show the applicant participated in five campaigns during his assignment in Vietnam.

11.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His records show he received conduct and efficiency ratings of "excellent" throughout his service.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the applicant's unit at the time of his assignment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation (19 April 1968 to 15 August 1968) based on Department of the Army General Orders (DAGO) Number 21, dated 1971.  His unit was awarded a second award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 15 August 1968 to 14 May 1969 based on DAGO Number 43, dated 1970.

13.  Paragraph 6 (Miscellaneous Information) of Department of the Army Pamphlet 672-3 states that not more than one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation may be worn by any individual.  Although wear of multiple awards of this unit citation badge is not authorized, official military personnel and historical records will indicate all awards received.

14.  Department of the Army Pamphlet 672-3 also shows the applicant's unit at the time of his assignment was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on DAGO Number 48, dated 1971.  

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for 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 medical personnel, 
and the medical treatment must have been made a matter of official record.  

16.  Army Regulation 600-8-22 provides, in pertinent part, that 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.  The regulation states that the bronze "V" Device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze "V" Device in conjunction with award of the Bronze Star Medal.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Army Commendation Medal.

18.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

19.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star based on qualifying service for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, including the Vietnam Service Medal.  
This regulation provides that a silver service star is authorized in lieu of five bronze service stars.

20.  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.

21.  A DA Form 638 (Recommendation for Award) must be submitted (a copy of which will be provided to the applicant).  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 request 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 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 citation for award of the Army Commendation Medal with "V" Device for heroism on 17 July 1968 in Vietnam which states the applicant was wounded is accepted as sufficient evidence on which to base award of the Purple Heart.

2.  Although the applicant contends that he received the Bronze Star Medal with "V" Device, there is no evidence of record which shows he was awarded the Bronze Star Medal with "V" Device.  Therefore, there is insufficient evidence on which to add award of the Bronze Star Medal with "V" Device to his DD Form 214.

3.  Evidence of record shows the applicant was awarded the Army Commendation Medal with "V" Device for heroism on 9 March 1968 and on 
17 July 1968.  There is no evidence of record which shows the applicant was recommended for or awarded the Bronze Star Medal with "V" Device.  Therefore, there is insufficient evidence on which to upgrade the applicant’s two awards of the Army Commendation Medal with "V" Device to the Bronze Star Medal with “V” Device.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal with “V” Device or upgrading his Army Commendation Medals with "V" Device to Bronze Star Medals 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 10 USC 1130.

4.  The applicant's DD Form 214 shows the Army Commendation Medal as an authorized award.  However, orders show he received one award of the Army Commendation Medal and two awards of the Army Commendation Medal with "V" Device.  Therefore, his DD Form 214 should be corrected to show the Army Commendation Medal with "V" Device with Second Oak Leaf Cluster.  

5.  The applicant was separated in the temporary rank of sergeant with 20 months of creditable active service with no time lost.  It appears the applicant met the eligibility criteria for the first award of the Good Conduct Medal for the period 5 April 1967 through 10 December 1968 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his records should be corrected to show this award.

6.  The applicant participated in five campaigns during his assignment in Vietnam which entitles him to award of the Vietnam Service Medal with one silver service star.  Therefore, his DD Form 214 should be corrected to show this award.

7.  The applicant's unit was cited for two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.  He is eligible to wear one of those awards; however, his DD Form 214 should be corrected to show two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

8.  The applicant's unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.  Therefore, his DD Form 214 should be corrected to show this unit citation.

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 him the Purple Heart for wounds received in action on 17 July 1968 in Vietnam;

	b.  awarding him the first award of the Good Conduct Medal for the period 
5 April 1967 through 10 December 1968; 

	c.  deleting the entry "ARMY COMMENDATION MEDAL" from item 
24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214; and 

	d.  adding the Purple Heart, the Good Conduct Medal, the Army Commendation Medal with "V" Device with Second Oak Leaf Cluster, two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and one silver service star for wear on his already-awarded Vietnam Service Medal to item 
24 on his DD Form 214. 

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 award of the Bronze Star Medal with "V" Device or upgrading his two awards of the Army Commendation Medal with "V' Device to the Bronze Star Medal with "V" Device.  



      _______ _   _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)                                         AR20090009905



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009905



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1