IN THE CASE OF:	

		BOARD DATE:	10 December 2009  

		DOCKET NUMBER:  AR20090011335 


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, that the Air Medal (AM), Bronze Star Medal (BSM) and Purple Heart (PH) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states, in effect, he earned the awards in question and they were not added to his DD Form 214.   

3.  The applicant provides a self-authored statement, AM orders, BSM citation, DD Form 214, and a third-party statement 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 enlisted in the Regular Army and entered active duty, on 27 May 1966, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to sergeant (SGT), on 25 January 1968, and that this is the highest rank he attained while serving on active duty.  It also shows he served in the Republic of Vietnam (RVN) from 15 December 1967 through 21 December 1968. 

4.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company A, 1st Battalion, 501st Infantry Regiment, performing duties in MOS 11B as a fire team leader.  It also shows he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  

6.  Item 41 of the applicant's DA Form 20 does show he earned the following awards during his active duty tenure: National Defense Service Medal (NDSM), BSM with "V" Device, Army Commendation Medal (ARCOM), Parachutist Badge, Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), RVN Campaign Medal (RVNCM) with Device 1960, Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar, and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 21 December 1968.  

7.  The applicant's Official Military Personnel File (OMPF) contains Headquarters, 101st Airborne Division General Orders (GO) Number 8252, dated 25 October 1968, which awarded the applicant the BSM with "V" (Valor) Device for heroism in the RVN on 23 April 1968, and the accompanying certificate.  It also contains Headquarters, 101st Airborne Division GO Number 9037, dated 5 November 1968, which awarded him the BSM for meritorious service during the period 
1 January through 31 August 1968, and the accompanying certificate; and Headquarters, 101st Airborne Division GO Number 11351, dated 30 December 1968, which awarded the applicant the AM for meritorious achievement while participating in aerial flight in the RVN on 20 May 1968, and the accompanying certificate.  


8.  The applicant's OMPF is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

9.  The applicant's OMPF is void of any orders or other documents that indicate he was ever wounded in action or recommended for or awarded the PH by proper authority while serving in the RVN.  It also contains no medical treatment records that indicate he was ever treated for a combat related wound by military medical personnel while serving in the RVN.  

10.  On 25 December 1968, the applicant was honorably released from active duty (REFRAD), in the rank of SGT, after completing 2 years, 6 months and
29 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 on the time shows he earned the following awards during his active duty tenure:  NDSM, VSM, RVNCM, ARCOM, Parachutist Badge, BSM with "V" Device, and CIB.

11.  The applicant provides a third-party statement from an individual who indicates he served with the applicant in the RVN.  This individual states that he witnessed the applicant being wounded sometime in the Spring of 1968.  He claims that while they were on an operation, they received small arms fire and rocket propelled grenade (RPG) rounds directed at their location.  He states an RPG round exploded between the applicant's legs causing burns to his pants and to his skin and cuts to his legs and buttocks.  He claims that because of the extensive enemy combat they encountered, a medical evacuation could not land and the applicant and one other Soldier were treated in the filed by the company medical corpsmen.  The applicant was awarded the PH for his injury.  

12.  A member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, the official DA list of RVN casualties.  This roster contains no entry pertaining to the applicant.  

13.  A 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.


14.  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 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 medical personnel, and that a record of this medical treatment was made a matter of official record.

15.  Paragraph 2-13 of the awards regulation contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized to be worn with this award for each Vietnam campaign a member is credited with participating in.  A silver service star is used in lieu of 5 bronze service stars to denote participation in five campaigns.  

16.  Table B-1 of the awards regulation contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, participation credit was granted for the Vietnam Counteroffensive Phase III (1 June 1967-29 January 1968), TET Counteroffensive (30 January-1 April 1968), Vietnam Counteroffensive Phase IV (2 April-30 June 1968), Vietnam Counteroffensive Phase V (1 July-1 November 1968), and Vietnam Counteroffensive Phase VI
(2 November 1968-22 February 1969).  

17.  Paragraph 3-14 of the awards regulation contains guidance on the BSM.  The regulation stipulates that an Oak Leaf Cluster is awarded to denote a second or subsequent award of the BSM.  

18.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying 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, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  

19.  Paragraph 9-13 of the awards regulation contains guidance on the RVN Campaign Medal and states, in pertinent part, that the Device (1960) is worn with this award.


20.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign 
participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Battalion, 501st Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the AM and a second award of the BSM should be added to his DD Form 214 was carefully considered and found to have merit.  

2.  The applicant's OMPF contains orders that awarded him the AM for meritorious achievement in flight on 20 May 1968, the BSM with "V" Device for heroism on 23 April 1968, and the BSM for meritorious service during the period 1 January through 31 August 1968.  Therefore, it would be appropriate to add the AM, and the BSM with 1st Oak Leaf Cluster and "V" Device to denote the (2nd Award) to his record and DD Form 214 at this time. 

3.  The applicant's record confirms he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or a unit commander disqualification that would have precluded him from being awarded the first award of the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 27 May 1966 through 25 December 1968, and to add this award to his record and DD Form 214 at this time.

4.  The record also shows that based on his RVN service and campaign participation, he is also eligible for award of the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, 1 silver service star to be worn with his already-awarded VSM, and the Device (1960) to be worn with his RVNCM.  It further shows he earned the Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214. 

5.  The applicant's contention that he was wounded in action and should be awarded 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 treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  
6.  In this case, item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is not included in the list of awards contained in item 41 of his DA Form 20 or in item 24 of his DD Form 214.  His OMPF is void of orders or documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and/or of any medical treatment records that show he was ever treated for a combat related wound by military medical personnel.  

7.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties and there are no PH orders on the ADCARS pertaining to the applicant.  As a result, absent any evidence of record corroborating the information provided by the applicant and contained in the third-party statement he submitted, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate to award the applicant the PH.  

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 Army Good Conduct Medal for his qualifying period of honorable active service from 27 May 1966 through 25 December 1968;

	b.  amending item 24 of his DD Form 214 by deleting the current Bronze Star Medal entry and replacing it with the Bronze Star Medal with 1st Oak Leaf Cluster and "V" Device (2nd Award), and adding the Air Medal, Army Good Conduct Medal, 1 silver service star to be worn with his already-awarded Vietnam Service, the Device 1960 to be worn with his already-awarded Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar" ;and 

	c.  providing him a correction to his DD Form 214 that includes these changes. 

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 Purple Heart. 




      _______ _   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)                                         AR20090011335



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ABCMR Record of Proceedings (cont)                                         AR20090011335


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