BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090016435 


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 Bronze Star Medal (BSM) and the Purple Heart (PH) be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He further requests that he be issued the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), and the Republic of Vietnam Campaign Medal (RVNCM) medal sets.

2.  The applicant states, in effect, he was awarded the BSM and PH; however, he never received the paperwork authorizing the awards.   He also states that his records confirm he received the NDSM, VSM, and RVNCM; however, he was never issued the medals.

3.  The applicant provides his DD Form 214, photocopies of awards he claims to be authorized, and an Army Commendation Medal (ARCOM) certificate and citation 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 military records show he was inducted into the Army of the United States and he entered active duty on 13 October 1966.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Cook).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) includes an entry in Item 31 (Foreign Service) which shows he served in the Republic of Vietnam (RVN) from 16 January 1968 to 5 October 1968.  Item 40 (Wounds) is blank and item 41 (Awards and Decorations) does not include the PH or the BSM in the list of authorized awards.  Item 41 does show he earned the following awards during his active duty tenure:  NDSM, VSM, RVNCM, and ARCOM.

4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no orders or other documents that indicate he was ever wounded in action or ever recommended for or awarded the PH.  In addition, there are no medical treatment records on file in the MPRJ that indicate he was ever treated for a combat-related wound/injury.

5.  The applicant's MPRJ is also void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority while serving on active duty.

6.  On 6 October 1968, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 24 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 he was issued at the time shows that he earned the following awards during his active duty tenure: NDSM, VSM, RVNCM, and ARCOM.  The PH and BSM are not included in this list of awards.

7.  During the review of this case, a staff of the Board’s reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This search failed to reveal the applicant’s name among this official list of RVN battle casualties.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. 

A wound is defined as an injury to any part of the body from an outside force or 
agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

9.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM and states, in pertinent part, that it may be awarded for heroism, meritorious service, or meritorious achievement.

10.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

11.  The award 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he is entitled to the BSM and the PH were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the BSM by proper authority while serving on active duty.  While the available evidence is insufficient to award the applicant the BSM, this does not affect the applicant’s right to pursue his claim for the BSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

3.  By regulation, in order to award the PH it is necessary to establish that a Soldier was wounded as a result of enemy action, that the wound required treatment by a medical officer, and that the record of medical treatment was made a matter of official record.  In this case, item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in item 41.  Further, there are no medical treatment records on file that show he was ever treated for a combat related wound or injury.

4.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent any evidence of record corroborating the fact the applicant was wounded in action, or treated for a combat related wound by military medical personnel, 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 or serve the interest of all those who served in the RVN and who faced similar circumstances to award him the PH at this late date.

5.  The applicant also requests medal sets for the NDSM, VSM, and the RVNCM. However, the ABCMR does not issue awards.  The applicant is advised that requests for medal sets for previously approved awards should be forwarded to the National Personnel Records Center (NPRC), ATTN: Army Reference Branch, 9700 Page Boulevard, St. Louis, Missouri 63132-5200.  The NPRC will verify the awards to which a retiree/veteran is entitled and forward the request with verification to the appropriate service department for issuance of the medals.  Requests to the NPRC may be submitted via a letter or completing a Standard Form 180 (which can be found at http://www.archives.gov/st-louis/military-personnel/index.html.)  Requests must include a copy of the retiree's/veteran's separation or discharge paperwork and any other supporting documentation to substantiate his request.






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 our Nation.  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)                                         AR20090016435



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ABCMR Record of Proceedings (cont)                                         AR20090016435



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