IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019198 


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, the widow of a deceased former service member (FSM), requests correction of her late husband's military records to show his service in Vietnam.  She also requests, in effect, award of the Purple Heart for an injury he received in Vietnam. 

2.  The applicant states the FSM served in Vietnam.

3.  The applicant provides:

* a clinical record
* one page of a 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 FSM was inducted into the Army of the United States on 8 March 1943 and he entered active duty on 15 March 1943.  He served in the European Theater of Operations from 3 September 1944 through 17 December 1944 and was honorably discharged on 18 September 1945.  He enlisted in the Regular Army on 13 May 1948 and remained on active duty through continuous reenlistments.  On 30 April 1966, he retired in the rank of master sergeant. 

3.  The FSM's DD Forms 214 (Report of Separation from the Armed Forces of the United States/Report of Transfer or Discharge) do not show service in Vietnam or the Purple Heart as an authorized award.  

4.  Item 38 (Record of Assignments) of the FSM's DA Form 20 shows he was temporary duty (TDY) to Vietnam from 3 April 1964 through 20 June 1964.

5.  Item 31 (Foreign Service) of the FSM's DA Form 20 shows he served in Korea from 6 October 1960 to 25 January 1962 and in Okinawa from 9 November 1963 through 24 April 1965.

6.  There is no evidence in the available records which show the FSM was wounded as a result of hostile action in Vietnam.

7.  The FSM's name does not appear on the Vietnam Casualty Roster.

8.  In support of her claim, the applicant provided an undated Clinical Record/Past History which shows the FSM served in Vietnam.  This record also shows he sustained shrapnel wounds to his right leg in 1944.

9.  Department of the Army, U.S. Total Army Personnel Command Permanent Order 59-4, dated 28 February 2002, shows the FSM was awarded the Purple Heart (posthumous) for wounds received as the result of hostile action on 
8 November 1944.  

10.  A DD Form 215 (Correction to DD Form 214), dated 15 March 2002, amended the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation) by adding the Purple Heart.

11.  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.  There is no provision to show temporary duty assignments or any assignment other than the unit of assignment upon separation on the DD Form 214.

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

13.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations or on TDY for 30 consecutive or 60 nonconsecutive days.

14.  Army Regulation 600-8-22 states the Korea Defense Service Medal (KDSM) is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.)

DISCUSSION AND CONCLUSIONS:

1.  The FSM's DA Form 20 shows he was TDY to Vietnam in 1964.  However, the governing regulation states there is no provision to show any assignment other than the unit of assignment upon separation on the DD Form 214.   His TDY assignment in Vietnam is properly reflected on his DA Form 20. 

2.  However, based on the FSM's service in Vietnam, he is eligible for the Vietnam Service Medal.

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

4.  The FSM served a period of qualifying service for award of the KDSM.





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 adding the Vietnam Service Medal and KDSM on his DD Form 214 for the period ending 30 April 1966.

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 amending his DD Form 214 for the period ending 30 April 1966 to show his service in Vietnam or award of the Purple Heart for an injury he received in Vietnam.  





      _______ _   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)                                         AR20090019198



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ABCMR Record of Proceedings (cont)                                         AR20090019198



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