BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013351 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected by adding a second award of the Purple Heart (PH) to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).

2.  The applicant states, in effect, that his DD Form 214 should reflect a second award of the PH and he was never awarded the PH 1st Oak Leaf Cluster (2nd Award) as he should have been. 

3.  The applicant provides his DD Form 214 and two DD Forms 1380 (Medical Cards) 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 was inducted into the Army of the United States and entered active duty on 28 August 1967.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman), and the highest rank he attained while serving on active duty was sergeant (SGT)/E-5.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 1 March 1968 through 20 December 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 1st Battalion, 14th Infantry Regiment, performing duties in MOS 11B as an automatic rifleman and team leader.  

4.  Item 40 (Wounds) of his DA Form 20 contains one entry showing he was wounded in action in the RVN on 28 April 1968, when he received a fragment wound to his left leg.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), PH, RVN Campaign Medal (RVNCM), Army Commendation Medal (ARCOM), Army Good Conduct Medal, and 2 Overseas Service Bars.  

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents showing he was ever recommended for or awarded the PH 1st Oak Leaf Cluster (2nd Award).  

6.  On 27 August 1969, the applicant was honorably released from active duty.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years of active military service.  Item 24 shows he earned the following awards during his active duty tenure:  NDSM, VSM, RVNCM, CIB, PH, ARCOM, AGCM, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This search revealed an entry confirming the applicant was wounded in action in the RVN on 28 April 1968.  This roster contains no entry showing the applicant was wounded in action a second time while serving in the RVN. 

8.  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 PH orders for the applicant. 

9.  The applicant provides DD Forms 1380, dated 29 April and 1 May 1968, respectively, which show he was treated for a small fragment to his left lower knee on 29 April 1968, and that a small fragment was removed from his left lower back on 1 May 1968.  These records give no indication when and under what circumstances these fragments were received.  

10.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a 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 treatment must have been made a matter of official record.  It further states that a PH is authorized for the first wound suffered but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been awarded a second PH was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was wounded in action in the RVN on 28 April 1968, as evidenced by entries in item 40 and 41 of his DA Form 20, orders on file in his MPRJ, and an entry on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  However, there are no record entries or orders confirming the applicant was wounded in action a second time, or that he was ever recommended for or awarded a second PH while serving in the RVN.  

3.  Further, the DD Forms 1380 provided by the applicant confirm only that he was treated for fragments to his lower left back and left lower knee on 29 April and 1 May 1968, but they provide no information regarding when or under what circumstances these wounds were received.  It is likely these were follow on treatment sessions that resulted from the wounds the applicant received in action on 28 April 1968, for which he was awarded the PH.  As a result, absent any evidence that the wounds for which he was treated on 29 April and 1 May 1968, as reflected on these forms, were the result of enemy action during an incident separate from the 29 April 1968 incident, for which he was awarded the PH, they provide an insufficient evidentiary basis to support award of a second PH.  


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)                                         AR20090013351



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ABCMR Record of Proceedings (cont)                                         AR20090013351



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