IN THE CASE OF:	

		BOARD DATE:	  06 MAY 2010

		DOCKET NUMBER:  AR20090018251 


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, correction of his DD Form 214 (Report of Separation from Active Duty) to show the Silver Star, Air Medal, Army Commendation Medal, and Purple Heart.  He also requests that his service in the Army National Guard and U.S. Army Reserve (USAR) be shown on this DD Form 214.

2.  The applicant states:

* his record of service in Vietnam (2 tours) was lost or misplaced
* in April 1970 he was awarded the Silver Star for pulling a pilot out of a downed chopper
* he received four minor shrapnel wounds from rounds coming up through the floor of his Huey gunship
* he participated in seven campaigns  
* he served in the Army National Guard from 1986 to 1990
* he served in the USAR from 1990 to 1993

3.  The applicant provides:

* citation for the Air Medal and Army Commendation Medal
* DD Form 214
* Compensation and Pension Examination Report
* clinical record dated 28 June 1971
* USAR Honorable Discharge Certificate
* Certificate of Extension from the Army National Guard
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 4 August 1969 for a period of 
3 years.  He arrived in Vietnam on 15 January 1970.  He served as a crew chief assigned to the 120th Aviation Company (Assault Helicopter) in Vietnam from 
15 January 1970 through 13 August 1971.  On 6 July 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.

3.  The applicant's DD Form 214 shows the "VSM W/BSS" [Vietnam Service Medal with bronze service star] and the Republic of Vietnam Campaign Medal with Device (1960) as authorized awards.  His DD Form 214 shows he was separated from the service on temporary records and a Soldier's affidavit.  

4.  There are no orders for the Silver Star or Purple Heart in the available records.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Silver Star or Purple Heart pertaining to the applicant.

7.  Headquarters, 1st Aviation Brigade General Orders Number 4578, dated 
3 June 1970, show the applicant received the Army Commendation Medal.

8.  Headquarters, 1st Aviation Brigade General Orders Number 6024, dated 
8 July 1970, show the applicant received the Air Medal.
9.  Records show the applicant participated in four campaigns during his assignment in Vietnam.

10.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973.

11.  The applicant enlisted in the Army National Guard on 19 April 1986 and was honorably discharged on 8 April 1991.  He subsequently served in the USAR. 

12.  Army Regulation 600-8-22 (Military Awards) states 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.

13.  Army Regulation 600-8-22 states 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 military medical personnel, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 600-8-22 states the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.

15.  Army Regulation 600-8-22 authorizes award of a bronze service star based on qualifying service for each campaign listed in appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.
DISCUSSION AND CONCLUSIONS:

1.  There are no orders for the Silver Star in the available records.  Therefore, there is insufficient evidence on which to base adding the Silver Star to his 
DD Form 214.  

2.  Orders show the applicant received the Air Medal and the Army Commendation Medal.  Therefore, his DD Form 214 should be corrected to show these medals. 

3.  There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

4.  The applicant's DD Form 214 shows the "VSM W/BSS."  However, he participated in four campaigns during his assignment in Vietnam which entitles him to award of the Vietnam Service Medal with four bronze service stars.  Therefore, his DD Form 214 should be corrected to show this award.

5.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units that served in Vietnam.  The applicant served in Vietnam during a qualifying period and is eligible for this award.  Therefore, it would be appropriate to add this foreign unit award to his DD Form 214.

6.  The applicant served a period of qualifying service for award of the National Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show this medal. 

7.  The DD Form 214 is a "snapshot in time" and is a reflection of the applicant's record of active Army service at the time of his separation from active duty.  Since the applicant served in the Army National Guard and the USAR 14 years after his release from active duty, there is no basis for amending his DD Form 214 to show this service.
  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "VSMW/BSS" in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214; and   

	b.  adding the Air Medal, Army Commendation Medal, Vietnam Service Medal with four bronze service stars, National Defense Service Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation in item 26 on his DD Form 214. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Silver Star and Purple Heart or amending his DD Form 214 to show his service in the Army National Guard or USAR.    



      _______ _   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)                                         AR20090018251



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ABCMR Record of Proceedings (cont)                                         AR20090018251



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