BOARD DATE:	  March 4, 2010

		DOCKET NUMBER:  AR20090016755 


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, award of two Purple Hearts.  In addition, he should receive an award for bravery under fire.

2.  The applicant states, in effect, that he was wounded (twice) and treated for his wounds by his unit medic while serving in Vietnam.  The applicant further states that he and two former fellow Soldiers should have been recognized for bravery due to bringing three fellow Soldiers to safety while under rocket, mortar, and machine gun fire.  The applicant states that the internet web site www.atroop412cav/history supports his claim.

3.  The applicant provides:

   a.  an e-mail from his former unit medic, dated 18 June 2009;
   
   b.  two undated statements from former fellow Soldiers; and 
   
   c.  two email messages from www.atroop412cav/history, a web site.
   
   
   
   
   
   
   
   
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 on 27 January 1969 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant arrived in Vietnam and was assigned to A Troop, 4th Squadron, 12th Cavalry, 1st Infantry Brigade, 5th Infantry Division, on 23 June 1969.  

4.  On 21 June 1970, the applicant departed Vietnam.  On 4 February 1971, he was honorably released from active duty after completing 2 years and 1 day of creditable active service.

5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 4 February 1971 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Vietnam Campaign Medal with Device 1960, and the Combat Infantryman Badge.

6.  There are no general orders in the applicant's service personnel records that show he was awarded the Purple Heart.  Further, there is no evidence in his service personnel records that shows he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart.

8.  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 orders for the applicant showing award of the Purple Heart or any award for bravery.

9.  The applicant's Army medical treatment records are unavailable.

10.  The applicant provides an email from his former unit medic, dated 18 June 2009.  The author states that he remembered both incidents in which the applicant was wounded.  The author stated that in the first incident the applicant was wounded from friendly fire shrapnel.  The author stated that the applicant was wounded a second time by enemy shrapnel.  He removed the shrapnel and bandaged the wound. 

11.  The applicant provided two, undated, witness statements from two former fellow Soldiers.  Both authors stated that their platoon was hit with enemy mortars, rocket propelled grenades, and machine gun fire.  While the platoon returned fire both authors and the applicant recovered three wounded tankers and got them to safety.

12.  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, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-8-22 provides that awards for valor, as with all personal decorations, require formal recommendations, approval through the chain of command, and announcement in orders.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

14.  Title 10 of the U.S. Code, section 1130 (10 USC 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for two awards of the Purple Heart was carefully considered.  However, the evidence is insufficient for approval of his request.  Further, there are no medical records available to verify that the applicant was wounded and treated for wounds received during enemy action.  The applicant's personnel records do not contain entries supporting the awards, and his name is not on the Vietnam Casualty Roster.  The e-mail statement from his former troop medic was considered, but is insufficient by itself to award the Purple Heart.

2.  The applicant contends that he and two former fellow Soldiers should be awarded medals for bravery (valor) after saving three tankers during an enemy attack.  Pertinent regulations require, as with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  Although the statements from former comrades-in-arms were considered, in the absence of a formal recommendation, chain of command approval, and orders, such statements are insufficient to warrant approval.

3.  While the available evidence is insufficient for awarding the applicant a valor award, this in no way affects the applicant’s right to pursue his claim for such an award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.
4.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting the applicant's requests.

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)                                         AR20090016755



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ABCMR Record of Proceedings (cont)                                         AR20090016755



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