IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014929 


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 three awards of the Purple Heart and the Bronze Star Medal.  He also requests correction of his rank/grade.

2.  The applicant states he had three Purple Hearts and a Bronze Star Medal.  He would like to have his medals.

3.  The applicant did not provide any additional documentary evidence in support of his 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 applicant's records show he enlisted in the Regular Army on 2 March 1964.  He held military occupational specialty 57A (Duty Soldier).

3.  His records also show he served in the Republic of Vietnam from on or about 15 April 1966 to on or about 6 October 1966.  He was assigned to Company A, 1st Battalion, 5th Cavalry Regiment.

4.  On 21 April 1965, he pled guilty at a special court-martial to one specification of being absent without leave (AWOL) from on or about 6 February 1965 through on or about 17 April 1965.  The court sentenced him to 2 months of restriction.  His sentence was approved on the same date.

5.  On 27 February 1967, he pled guilty at a special court-martial to one specification of being AWOL from on or about 1 November 1966 to on or about 16 December 1966 and one specification of failing to go at the time prescribed to his appointed place of duty.  The court sentenced him to a forfeiture of $59.00 pay per month for 6 months, confinement at hard labor for 6 months, and a reduction to private (PVT)/E-1.

6.  On 5 October 1967, he pled guilty at a special court-martial to one specification of being AWOL from on or about 7 August 1967 through on or about 13 September 1967.  The court sentenced him to a forfeiture of $43.00 pay per month for 4 months and confinement at hard labor for 4 months.  His sentence was approved on 17 October 1967.

7.  On 24 October 1967, his immediate commander initiated a bar to reenlistment against him.  His bar was approved by his battalion commander on 3 November 1967.

8.  On 17 November 1967, he was released from active duty with a character of service of under honorable conditions and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation. 
His DD Form 214 shows the following entries:

	a.  Item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) show his rank and grade as PVT/E-1.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle and Pistol Bars, Vietnam Service Medal, and Vietnam Campaign Medal.  Item 24 does not show any awards of the Purple Heart or the Bronze Star Medal.
9.  Nothing in five typical sources shows he was awarded the Purple Heart or the Bronze Star Medal:

	a.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank.

	b.  His name is not shown on the Vietnam casualty roster.

	c.  There are no general orders in his records that show he was awarded the Purple Heart or the Bronze Star Medal.

	d.  A 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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Bronze Star Medal.

	e.  His available medical records do not show a combat wound or injury or treatment.

10.  His personnel records do not contain official orders that show he was promoted to a higher grade between his February 1967 court-martial conviction and his release from active duty.

11.  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.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

12.  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 his or her 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 item 5a and item 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 his DD Form 214 should be corrected to show three awards of the Purple Heart, the Bronze Star Medal, and his correct rank.

2.  With respect to the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, his record is void of any orders that show he was awarded the Purple Heart, and his available medical records do not indicate he was wounded and/or injured as a result of hostile action.  Therefore, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  With respect to the Bronze Star Medal, the governing Army regulation requires a formal recommendation, approval through the chain of command, and announcement of orders for personal decorations.  In the absence of orders, there is insufficient evidence to add the Bronze Star Medal to his DD Form 214.

4.  With respect to his rank/grade, he was convicted by a court-martial and sentenced to a reduction to PVT/E-1.  There is no evidence in his records that he was promoted to a higher grade between his court-martial conviction and his release from active duty.  His rank/grade at the time of his release from active duty was PVT/E-1.  His DD Form 214 correctly lists his rank/grade.

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)                                         AR20090014929



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014929



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1