IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013859 


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 the DD Form 214 (Certificate of Release or Discharge from Active Duty) of her deceased husband, a former service member (FSM), be corrected to show two awards of the Bronze Star Medal, three awards of the Purple Heart, and the Silver Star.  She also requests that his rank be corrected to show that he served as a master sergeant (MSG)/pay grade E-8.

2.  The applicant states that her deceased husband received two Bronze Star Medals and three Purple Hearts during his service in Vietnam.  His wounds were a bullet crease in his skull and shrapnel in one leg and in his posterior.  He was also supposed to receive the Silver Star and another Bronze Star Medal at Fort Bliss, TX, for saving the lives of a pilot and a copilot and a hanger full of airplanes during a fire there.  She also states that her husband was a member of the Green Berets/Special Forces in Vietnam.  He was so very secretive about the operation in Vietnam that her father-in-law expects he either worked for the Central Intelligence Agency (CIA) or with a ghost reconnaissance part of the Special Forces.  When he later went to work for the National Aeronautics and Space Administration (NASA) that agency requested a security background on him and her father-in-law was told that NASA security received calls from the CIA, the Federal Bureau of Investigation, and others who wanted to know this information was being requested for him.  This also leads her father-in-law to believe that her husband's military records are sealed because of some military or CIA classification.  She further states that before he died, he told her father-in-law that he had made MSG/E-8 but she cannot find that on his records.

3.  The applicant provides a copy of the FSM's death certificate, dated 19 May 2007; and a copy of page 3 of the FSM's 4-page DA Form 2-1 (Personnel Qualification Record), in support of her request.

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 FSM's records show he enlisted in the Regular Army (RA) for a period of 3 years on 19 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 26V (Strategic Microwave Systems Repairer).  His records also show he served in the Republic of Vietnam from on or about 8 July 1968 to 8 February 1970.  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 
10 February 1970 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.  

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), an unidentified level of the Marksmanship Qualification Badge with M-16 and M-14 Rifle Bars, and three overseas service bars.  Item 24 does not show award of the Purple Heart or the Bronze Star Medal.

4.  After a short break in service, the FSM's records show he enlisted in the RA on 9 July 1973.  He was trained in and held MOS 33C (Intercept/Terminal Receiving System Repairman) and MOS 33S (Electronic Warfare/Intercept Systems Repairman).  He subsequently served in Thailand from on or about 12 August 1974 to 23 May 1975.  He was assigned to Company C, 7th Radio Research Field Station.  

5.  The FSM's records show he was honorably discharged in the rank/grade of specialist five (SP5)/E-5 on 13 February 1977.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Report of Separation from Active Duty) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), three overseas service bars, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Good Conduct Medal.  Again, item 24 does not show award of the Purple Heart or the Bronze Star Medal.

6.  The FSM's records further show he enlisted in the RA for a period of 4 years on 14 February 1977.  He was promoted to staff sergeant (SSG)/E-6 on 11 April 1977 and executed a 10-month extension on 27 November 1978.  He served in Berlin, Germany from on or about 23 November 1978 to on or about 8 June 1982.  

7.  He was honorably discharged on 9 June 1982.  The DD Form 214 he was issued shows the following entries:

	a.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) shows the entries SSG and E-6.

	b.  Item 12h (Effective Date of Pay Grade) shows the entry "77  04  11"; 

	c. Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Noncommissioned Officers Professional Development Ribbon with Numeral 2, the Army of Occupation Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Commendation Medal, the Overseas Service Ribbon, and the Meritorious Service Medal.  Item 13 does not show award of the Purple Heart or the Bronze Star Medal.

8.  Item 9 (Awards, Decorations, and Campaigns) of the FSM's DA Form 2-1 does not list awards of the Purple Heart or the Bronze Star Medal.

9  Item 18 (Appointments and Reductions) of the FSM's DA Form 2-1 shows the highest rank/grade he held was that of SSG/E-6 and his date of rank as 11 April 1977.

10.  Item 27 (Remarks) of the FSM's DA Form 2-1 does not list any physical limitations as a result of wounds, injuries, or illness.

11.  Item 35 (Record of Assignments) of the FSM's DA Form 2-1 shows he performed the duties of a sergeant first class (SFC)/E-7 from 1 October 1979 to 9 July 1980.  Additionally, item 27 shows that a copy of his personnel qualification file was forwarded to the U.S. Army Enlisted Records and Evaluation Center for consideration for promotion to SFC/E-7 on 1 November 1979, 21 October 1980, and 9 October 1981.  However, there is no indication that he was selected for promotion to SFC/E-7.

12.  The FSM's name is not shown on the Vietnam Casualty Roster.

13.  There are no general orders in his records that show he was awarded the Purple Heart or the Bronze Star Medal.  Additionally, his records do not show he was recommended for or awarded the Silver Star.

14.  During the processing of this case, a member of the Board's 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 Purple Heart or Bronze Star Medal orders on file for the FSM.

15.  The applicant's medical records are not available for review with this case; however, his records contain a DA Form 3082-R (Statement of Medical Condition), dated 10 February 1970, in which he stated he underwent a physical examination and that there had been no change in his medical condition.

16.  Army Regulation 600-8-22 (Military Awards) provides for the following awards: 

	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 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.  

	c.  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.

17.  Army Regulation 600-200 (Enlisted Personnel Management) in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grades E-3 through E-9, appointments, grade reductions, and grade restoration were announced in routine orders.  

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her deceased husband's DD Form 214 should be corrected to show two awards of the Bronze Star Medal, three awards of the Purple Heart, and a Silver Star.  She also requests that his rank/grade be corrected to show that he served as a MSG/E-8.

2.  With respect to the Purple Heart, it differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting a specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the award.  

3.  The criteria for award of the Purple Heart require that a Soldier must have received wounds or injuries as a result of enemy action.  The wounds must have required treatment by medical personnel and made a matter of official record.  In this case, there are no general orders that show the FSM was awarded the Purple Heart; there is no evidence in his service personnel records that shows he was wounded, or injured as a result of friendly, or hostile action, or treated for such wounds; and his name is not shown on the Vietnam Casualty Roster.  The FSM’s medical records are not available.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to add the Purple Heart to his DD Form 214.

4.  With respect to the Bronze Star Medal, there is no evidence in the FSM’s records and the applicant did not provide any substantiating evidence that shows he was recommended for and/or awarded the Bronze Star Medal.  The governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to add the Bronze Star Medal to the FSM’s DD Form 214.

5.  With respect to the Silver Star (awarded for gallantry in action against the enemy), the FSM's record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star.  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 the FSM performed with marked distinction and led or may lead to awarding him the Silver Star.  

6.  With respect to the FSM's rank/grade, the evidence of record shows that at one stage during his tour in Germany, the FSM was placed in an SFC/E-7 position.  However, his records were considered by three different E-7 promotion boards but he was not selected for promotion; his record is void of any promotion orders to SFC/E-7; and item 18 of his DA Form 2-1 shows the highest rank/grade he held was that of a SSG/E-6.  The FSM held the rank/grade of SSG/E-6 at the time of separation on 9 June 1982.  This rank/grade is correctly shown on his DD Form 214.

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)                                         AR20090013859



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ABCMR Record of Proceedings (cont)                                         AR20090013859



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