IN THE CASE OF:
BOARD DATE: 27 May 2010
DOCKET NUMBER: AR20090018835
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 records to show that he was awarded the Purple Heart with First Oak Leaf Cluster.
2. The applicant states:
* He previously requested correction of his records in relation to his decorations
* A DD Form 215 (Correction to DD Form 214) was issued on 27 October 2003
* His DD Form 215 lists only one Purple Heart
3. The applicant provides copies of his:
* DD Form 215
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Purple Heart Certificates dated 24 September and 25 September 1969
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army on 12 March 1968. He completed his training as an indirect fire crewman. He was transferred to Vietnam on 31 January 1969.
3. On 24 September 1969, the applicant received "a penetrating fragment wound to his left partial area" and fragment wounds to his right shoulder and abdomen. His wounds were received as a result of hostile action by enemy forces and he was hospitalized as a result of his wounds.
4. General Orders Number 202 were published on 25 September 1969 by Headquarters, 24th Evacuation Hospital awarding him the Purple Heart for wounds received as a result of hostile action on 25 September 1969.
5. General Orders Number 11858 were published on 27 September 1969 by Headquarters, 1st Cavalry Division (Airmobile) awarding the applicant the Purple Heart for wounds received in connection with military operation against a hostile force on 24 September 1969.
6. The applicant returned to the Continental United States on 30 October 1969.
7. On 16 March 1970, the applicant was permanently retired by reason of physical disability. His DD Form 214 shows he was awarded the:
* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge
* Meritorious Unit "Citation"
* Good Conduct Medal
8. The Purple Heart was not included on his DD Form 214.
9. On 27 October 2003, the applicant was issued a DD Form 215 to delete the Vietnam Service Medal from his DD Form 214 and to add the following awards:
* Purple Heart
* Air Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
10. A review of the Vietnam Casualty Roster shows that the applicant was wounded in action on 24 September 1969 and his name is listed only once on the roster.
11. U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart. The regulation stated that authority to award the Purple Heart was delegated to hospital commanders. Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.
12. Army Regulation 600-8-22 (Military Awards) provides that a Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon. Not more than one award will be made for more than one wound or injury received at the same incident or from the same missile, force, explosion, or agent.
DISCUSSION AND CONCLUSIONS:
1. The applicant's records show that General Orders were published by the hospital commander and by the organization to which he was assigned awarding him the Purple Heart.
2. However, his records clearly show that he was wounded once while he was in Vietnam. The Vietnam Casualty Roaster shows that he was wounded only once while he was in Vietnam. Therefore, it is reasonable to presume that an error was made when two separate sets of general orders were published awarding him the Purple Heart for the same incident which actually occurred on
24 September 1969. Therefore, he is entitled to only one award of the Purple Heart.
3. On 27 October 2003, the applicant was issued a DD Form 215 amending his DD Form 214 to include the award of the Purple Heart. He is not entitled to an Oak Leaf Cluster to be affixed to his already-awarded Purple Heart.
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) AR20090018835
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ABCMR Record of Proceedings (cont) AR20090018835
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