IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090015869 


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 that he be awarded the Purple Heart and the Bronze Star Medal (BSM) and that his Overseas Service Bars be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was wounded in Vietnam and was recommended for award of the Purple Heart and the BSM by his platoon leader for his engagement of enemy forces in July – August 1970.  However, he never received either of the awards.  He goes on to state that he was treated by a medic in the field from another platoon and he does not know what happened to the paperwork.  He also states that he is an honorable man and does not want what he did not earn; however, he was wounded in Vietnam.

3.  The applicant provides a copy of his DD Form 214 and DD Form 215 (Correction to the DD Form 214); a copy of a letter from the National Personnel Records Center; a copy of orders assigning him to Company B, 2d Battalion, 47th Infantry Regiment; a copy of orders assigning him to Headquarters and Headquarters Troop, 11th Armored Cavalry Regiment (ACR); and a copy of the last page of his DA Form 20 (Enlisted Qualification Record).

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 enlisted in the Regular Army in Montgomery, Alabama on 2 July 1969 for a period of 3 years and training under the infantry enlistment option.  He successfully completed his training as a light weapons infantryman and was transferred to Vietnam on 26 April 1970 for assignment to Company B, 
2d Battalion, 47th Infantry Regiment.  On 20 September 1970, he was reassigned to I Troop, 3d Squadron, 11th ACR. 

3.  On 27 February 1971, the applicant departed Vietnam for Fort Sam Houston, Texas where he served as a military policeman until he was honorably released from active duty (REFRAD) on 4 January 1972, under the Phasedown Release Programs.  He had served 2 years, 6 months, and 2 days of total active service and his DD Form 214 issued at the time of his REFRAD indicates he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Vietnam Campaign Medal, the Combat Infantryman Badge (CIB), and the Army Commendation Medal.  He is also entitled to wear one overseas service bar on his uniform to denote each 6-month period of service served in a hostile fire zone.  The overseas service bar is a uniform item authorized by Army Regulation 670-5.

4.  On 31 March 2009, the National Archives and Records Administration issued the applicant a DD Form 215 which incorrectly deleted the entry for the CIB and erroneously added the CIB (2d award).  It also added the VSM with two bronze service stars, the Good Conduct Medal, and his marksmanship badges.

5.  A review of the applicant’s official records as well as the Vietnam Casualty Listing failed to reveal any evidence to show the applicant was wounded as a result of enemy action, that he was treated for such injuries or that he was reported as a casualty.  His records also do not contain any evidence regarding the recommendation for or award of the BSM. 

6.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, failed to contain an order awarding the applicant the BSM.
7.  Section 1130, Title 10, U. S. Code provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  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 comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester.

8.  The request, with a DA Form 638 (Recommendation for Award), 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 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 burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

9.  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.

10.  Army Regulation 635-5 (Separations Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that only awards and decoration contained in Army Regulation 600-8-22 will be entered on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was wounded in Vietnam and should have been awarded the Purple Heart is not in doubt, there simply is no evidence in the available records to corroborate his claim.  Therefore, in the absence of evidence to the contrary, there appears to be no basis to award him the Purple Heart at this time.

2.  Although the applicant is not precluded from seeking relief under Title 10, Section 1130, there is insufficient evidence at this time to warrant awarding the applicant the Bronze Star Medal for his service in Vietnam.  This is further complicated by the absence of records and the passage of time (38 years).

3.  The applicant’s contention that his overseas service bars should be added to his DD Form 214 has been noted and found to lack merit.  Overseas service bars are a uniform item and are not authorized for entry on the DD Form 214.  Accordingly, there is no basis to do so at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  _____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   __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)                                         AR20090015869



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ABCMR Record of Proceedings (cont)                                         AR20090015869



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