IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090020485 


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 the following:

	a.  His deceased father, a former service member (FSM), be awarded the following awards:

* Two awards of the Silver Star (SS)
* Three additional awards of the Purple Heart (PH)
* Two additional awards of the Bronze Star Medal (BSM)

	b.  The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 31 December 1979 be corrected to show his awards and decorations include the:

* Combat Infantryman Badge (CIB) (2nd Award)
* SS (1st Oak Leaf Cluster (OLC)) 
* Legion of Merit (LM)
* BSM with "V" Device (5th OLC)
* PH (3rd OLC)
* Meritorious Service Medal (MSM)
* Air Medal (AM)
* Army Commendation Medal (1st OLC)
* Good Conduct Medal (9th Award)
* Army of Occupation Medal (AOM) with Japan Clasp
* 
National Defense Service Medal (NDSM)
* Korea Service Medal (KSM) with 3 bronze service stars
* Vietnam Service Medal (VSM) with 6 bronze service stars
* Korea Defense Service Medal (KDSM)
* Republic of Vietnam Gallantry Cross (RVNGC) with silver star
* United Nations Service Medal (UNSM) (Korea)
* Republic of Vietnam Campaign Medal (RVNCM) (2nd Award)
* Republic of Korea War Service Medal (ROKWSM)
* Presidential Unit Citation (PUC) (2nd Award)
* Meritorious Unit Commendation (MUC) (2nd Award) 
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (RVNGC w/P) (3rd Award)
* Republic of Vietnam Civil Honors Medal First Class Unit Citation (RVNCHM-FC) (2nd Award)
* Six Overseas Service Bars

2.  The applicant states that his father was issued several separation/discharge documents that either omitted or listed inconsistent awards and decorations.  He wants to ensure the historical accuracy of his father's record by listing all of the awards and decorations he earned on his last DD Form 214.

3.  The applicant provides a copy of the FSM's death certificate; copies of various separation or discharge documents; various photographs of the FSM or his medals; and a Table of Contents, listing 36 attachments consisting of extracts of regulations, general orders, special orders, witness statements, internet printouts, awards criteria documentation, and some of the FSM's related military records. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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.

3.  The applicant requests that his deceased father be awarded two Silver Stars and two additional awards of the Bronze Star Medal; however, there are no orders or other evidence in his Official Military Personnel File authorizing these awards.  In the absence of authority for these awards, the applicant may request that his deceased father be awarded the additional awards under the provisions of Title 10, U.S. Code, section 1130.  The applicant has been notified by separate correspondence of the procedures for applying for these awards under Title 10, U.S. Code, section 1130.  As a result, the request for two awards of the Silver Star and two additional awards of the Bronze Star Medal will not be discussed further in this Record of Proceedings.

4.  The FSM was called to active duty from the Oklahoma Army National Guard on 1 September 1950.  He subsequently served in Korea from on or about        26 November 1951 to on or about 28 May 1952.  He was assigned to the Heavy Mortar Company, 180th Infantry.

5.  He was honorably released from active duty to the control of his ARNG unit on 25 June 1952.  The DD Form 214 (Report of Separation from the Armed Forces of the United States) he was issued for the period 1 September 1950 through 25 June 1952 shows the following entries:

	a  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form shows the AOM (Japan), UNSM, CIB, and KSM with 3 bronze service stars; and 

	b.  Item 29 (Wounds Received as a Result of Enemy Forces) shows the entry "None."  

6.  After a break in service, he enlisted in the RA on 16 December 1955.  He served through multiple reenlistments in the RA and attained the rank/grade of command sergeant major (CSM)/E-9. 

7.  On 31 December 1979, he was honorably retired and placed on the retired list in his retired rank/grade of CSM/E-9 on 1 January 1980.  He was credited 
25 years and 10 months of active service.  

8.  His records also show, in addition to his earlier service in Korea, he completed several periods of overseas service as follows:

	a.  He served in Korea from on or about 23 April 1956 to 27 March 1957.  He was assigned to the Heavy Mortar Company, 21st Infantry Regiment. 

	b.  He served in Germany from on or about 5 June 1959 to 12 May 1964.

	c.  He served in Vietnam from on or about 4 May 1966 to 3 May 1967.  He was assigned to Company B, 2nd Battalion, 18th Infantry, 1st Infantry Division.

	d.  He served in Germany from on or about 11 May 1967 to 24 March 1969.

	e.  He served in Vietnam from on or about 6 June 1969 to 5 June 1970:

		(1)  He was assigned to Company A, 1st Battalion, 12th Infantry, 
4th Infantry Division, from on or about 16 June 1969 to 15 September 1969. 

		(2)  He was assigned to Headquarters and Headquarters Company (HHC), 4th Infantry Division, from on or about 16 September 1969 to 5 June 1970.

	f.  He served in Germany from on or about 6 June 1970 to 27 May 1977.

9.  The FSM's records show he was issued the following discharge and/or separation documents:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 16 December 1955 through 15 December 1958 shows in:

		(1)  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the GCM, KSM with 3 bronze service stars, UNSM, AOM (Japan), and NDSM. 

		(2)  Item 29 (Wounds Received as a Result of Enemy Forces) shows the entry "None."  

	b.  DD Form 214 for the period 16 December 1958 through 15 December 1964 shows in:

		(1)  Item 26 the GCM (1st Award) (29 November 1958), GCM 
(2nd Award) (30 October 1964), AOM (14 May 1964), a Certificate of Achievement (23 March 1963), and two Letters of Commendation (14 April 1961 and 31 January 1962).

		(2)  Item 27 (Wounds Received as a Result of Action with Enemy Forces) shows the entry "None."  

	c.  DD Form 214 for the period 16 December 1964 through 18 December 1970 shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the CIB (2nd Award), NDSM (1st OLC), PH, VCM, BSM with "V" Device (1st OLC), ARCOM (1st OLC), AM, GCM (3rd Award), RVNGC with silver star, RVNGC with Palm, and BSM (3rd OLC).

	d.  DD Form 214 (Report of Separation from Active Duty) for the period  19 December 1970 through 20 September 1976 shows in item 26 the ARCOM, AOM, NDSM, CIB, KSM, VSM, RVNCM, NDSM (1st OLC), PH, BSM, BSM (1st OLC), BSM (2nd OLC), BSM (3rd OLC), AM, ARCOM (1st OLC), RVNGC with silver star, RVNGC with Palm, RVNCAHM-FC, 4 Overseas Service Bars, CIB (2nd Award), GCM (4th Award), 6 campaigns, and the Expert Marksmanship Qualification Badge (M-16 Rifle).

	e.  DD Form 214 for the period from 21 September 1976 to 31 December 1979 shows in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the AOM, NDSM, CIB, VSM with 6 bronze service stars, RVNCM, LM, NDSM (1st OLC), PH, BSM (3rd OLC), AM, ARCOM (1st OLC), RVNGC with silver star, RVNGC with Palm, RVNCAHM-FC, 6 Overseas Service Bars, CIB, GCM (6th Award), and MSM. 

10.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  The 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. 

	b.  The ROKWSM is awarded to members of the U.S. Armed Forces who served in Korea and adjacent waters between 25 June 1950 and 27 July 1953.  The service must have been performed, in part, while on permanent assignment for 30 consecutive days or on temporary duty for 30 consecutive or 60 non-consecutive days within the territorial limits of Korea or the waters immediately adjacent thereto.

	c.  The Republic of Korea Presidential Unit Citation (ROK-PUC) is awarded by the Korean government.  By order of the Korea Government, the award was retroactively authorized to every unit of the United States Army which had deployed to Korea between 1950 and 1954.  Not more than one ROK-PUC will be worn by any individual and no OLC or other appurtenance is authorized.

	d.  The PUC (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual. 

	e.  The MUC is awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy occurring on or after     1 January 1944.  Service in a combat zone is not required, but must be directly related to the combat effort.  The unit must display such outstanding devotion and superior performance of exceptionally difficult tasks as to set it apart from and above other units with similar missions.  

	f.  A bronze service star will be awarded for wear on the Vietnam Service Medal or the Korean Service Medal for participation in each credited campaign.  A silver service star is authorized in lieu of five bronze service stars.

	g.  The bronze "V" device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze "V" device in conjunction with awards of the ARCOM, AM, and BSM.  Although more than one award of the ARCOM, AM, or BSM may be made for heroism to the same person, only one "V" Device may be worn on awards of the ARCOM, AM, or BSM.

	h.  The OLC is awarded to denote the second and succeeding awards of certain decorations, among which are the SS, BSM, MSM, ARCOM, and several other individual decorations. 

11.  Department of the Army (DA) Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows that during his service with the Heavy Mortar 

Company of the 180th Infantry Regiment in Korea, this unit was awarded the Distinguished Unit Citation (now known as PUC) for service from 13 June 1952 to 15 June 1952 based on Department of the Army General Orders (DAGO) Number 21, dated 1953. 

12.  DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This document shows the following:

	a.  During the FSM's service with the 1st Battalion, 18th Infantry, this unit was awarded the RVNGC with Palm for service from 12 July 1965 to 16 October 1968 based on DAGO Number 21, dated 1969 and the RVNCAHM-FC for service from 12 July 1965 to 7 April 1970, based on DAGO Number 53, dated 1970.  Additionally, during this period, the 1st Infantry Division (and its subordinate units) was awarded the MUC based on DAGO Number 37, dated 1970.

	b.  During the FSM's service with the 1st Battalion, 12th Infantry, this unit was awarded the RVNGC with Palm for service from 1 October 1966 to 28 July 1969 based on DAGO Number 3, dated 1970 and the RVNCAHM-FC for service from 1 October 1966 to 31 October 1969, based on DAGO Number 53, dated 1970.  Additionally, the 4th Infantry Division (and it subordinate units) was awarded the MUC based on DAGO Number 51, dated 1971.

	c.  During the FSM's service with HHC, 4th Infantry Division, this unit was awarded the RVNGC with Palm for service from 29 July 1969 to 17 November 1970 based on DAGO Number 52, dated 1971. 

	d.  Not more than one RVNGC Unit Citation will be worn by any individual. Although multiple awards of this unit citation are not authorized for wear, official military and historical records will indicate all awards received.  However, in the case of duplicate awards covering the same period of time only one award will be recorded in official military and historical records.

13.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the Overseas Service Bar.  It states a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. For Vietnam service, one overseas service bar was authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of 

departure from Vietnam were counted as whole months for credit toward the overseas service bar.

14.  The FSM's record is void of derogatory information in the form of lost time, a record of nonjudicial punishment (NJP), a court-martial, or a suspension of favorable personnel action (flag).  Additionally:

	a.  Section 24 (Endorsement) of his DA Form 24 (Service Record) shows he received an "excellent" conduct and efficiency rating during his first period of active duty (1 September 1950 through 28 May 1952).  However, there is no record he was awarded the GCM during this period.

	b.  His DD Forms 214 listed 6 awards of the GCM as follows:  GCM 
(1st Award) - 29 November 1958; GCM (2nd Award) - 30 October 1964; GCM (3rd Award) - no date; GCM (4th Award) - 21 October 1970; GCM (5th Award) which is not listed anywhere; and GCM (6th Award) - no date listed. 

	c.  His records contain only one set of orders awarding him the GCM, Permanent Orders 36-7, issued by U.S. Army Regional Personnel Center, Giessen, Germany, awarded him the GCM (6th Award) for service from 23 October 1973 to 21 October 1976.

15.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the GCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "Unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 
22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

16.  Headquarters, 1st Infantry Division, General Orders Number 1298, dated 18 July 1966, awarded the FSM the Purple Heart for wounds received in action on 30 June 1966 in RVN.

17.  Nothing in six typical sources shows he was awarded three additional awards of the Purple Heart:

	a.  The FSM's complete DA Form 20 (Enlisted Qualification Record) which would have listed combat injuries in item 40 (Wounds) is not available for review with this case.

	b.  The FSM's name is shown on Vietnam Casualty Roster as having been wounded on 30 June 1966 in Vietnam.  However, there is no listing of a second or a subsequent wound/injury.

	c.  There are no general orders in the FSM's records that show he was awarded three additional awards of the Purple Heart.

	d.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal orders for the Purple Heart.

	e.  The FSM's available medical records do not show a combat wound or injury or treatment.

	f.  The FSM's record is void of a Department of the Army telegram or a Western Union Message informing his next of kin of combat related injuries or wounds.

18.  The applicant submitted the following documents (pertaining to the PH):

	a.  PH (1st OLC) supported by a PH photograph, taken on 1 November 1966 at Di An, Vietnam, a hand-written note concerning an injury on 1 November 1966, and newspaper clippings from the Stars and Stripes.  

	b.  PH (2nd OLC) supported by an email from an individual who states the FSM was wounded on 6 November 1966 when he caught some fragments in the arm and shoulder. 

	c.  PH (3rd OLC) supported by the FSM's handwriting in the margin of the Stars and Stripes indicating he was in a helicopter that was shot down on or around 17 November 1966.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the records of his deceased father, a FSM, should be corrected to show four awards of the PH and his retirement DD Form 214 should be corrected to list all of his awards and decorations.  

2.  The FSM was awarded the following awards throughout his service that were listed on one or more of his prior DD Forms 214 and should be listed on his retirement DD Form 214:  LM, BSM (3rd OLC) with "V" Device, MSM, PH, AM, ARCOM (1st OLC), NDSM (1st OLC), AOM (Japan), VSM with one silver service star and one bronze service star, KSM with 3 bronze service stars, UNSM, CIB (2nd Award), RVNCM, RVNGC with silver star, 6 Overseas Service Bars, and Expert Marksmanship Qualification Badge (Rifle M-16).

3.  The FSM's records also show he served a qualifying period of service for award of the KDSM, ROKWSM, and ROK-PUC, and these awards should be added to his last DD Form 21.

4.  The available evidence show general orders awarded the FSM'S units in Vietnam 3 awards of the RVNGC with Palm, 2 awards of the RVNCAHM-FC, and 2 awards of the MUC; therefore, he is entitled to correction of his retirement DD Form 214 to show these awards.

5.  General orders awarded the FSM's unit in Korea the PUC which is not listed on his DD Form 214; therefore, he is entitled to correction of his retirement 
DD Form 214 to show this award.

6.  With respect to the GCM:

	a.  The FSM's records is void of orders awarding him the appropriate number of GCMs and his various DD Forms 214 show incorrect dates associated with the GCM's.  

	b.  The FSM's record is void of derogatory information in the form of NJP, lost time, court-martial actions, or flags.  In the interest of clarity and justice, his sixth award should be revoked and he should be awarded 9 GCMs for exemplary behavior, efficiency, and fidelity as follows:

		(1) GCM (1st Award) from 1 September 1950 through 25 June 1952 
(a period of less than 3 years (first award only). 

		(2)  GCM (2nd Award) from 16 December 1955 through 15 December 1958. 

		(3)  GCM (3rd Award through the 9th Award) every 3 years until retirement. 

7.  The PH differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.  

8.  The criteria for an award of the PH requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

9.  The FSM's record clearly reflects that of a highly decorated and true American hero.  However, photographs of medals, personal chronicles and recollection of events, entries on news articles, and chronicles of events in the form of a sworn affidavit, which were prepared and/or are submitted more than 30 years after the fact, do not by themselves conclusively prove the FSM was wounded or injured as a result of hostile action.  

10.  Notwithstanding the FSM's sacrifices and the applicant's sincerity, aside from the FSM's combat wound on 30 June 1966, there is insufficient evidence in the FSM's record that shows he was wounded or injured a second, third, or fourth time as a result of hostile action or treated for such wounds.  Regrettably, absent evidence which conclusively shows he sustained additional wounds or injuries as a result of hostile action, and that he was treated by medical personnel for each of those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him additional awards of the PH.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  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.  revoking Permanent Orders 36-7, issued by U.S. Army Regional Personnel Center, Giessen, Germany, awarding the FSM the GCM (6th Award) for service from 23 October 1973 to 21 October 1976.

	b.  awarding the FSM the GCM for exemplary behavior, efficiency, and fidelity during the following periods:

* GCM (1st Award) from 1 September 1950 through 25 June 1952
* GCM (2nd Award) from 16 December 1955 through 15 December 1958
* GCM (3rd Award) from 16 December 1958 through 15 December 1961
* GCM (4th Award) from 16 December 1961 through 15 December 1964
* GCM (5th Award) from 16 December 1964 through 15 December 1967
* GCM (6th Award) from 16 December 1967 through 15 December 1970
* GCM (7th Award) from 16 December 1970 through 15 December 1973
* GCM (8th Award) from 16 December 1973 through 15 December 1976
* GCM (9th Award) from 16 December 1976 through 15 December 1979

	c.  deleting all entries from item 13 of his DD Form 214, dated 
31 December 1979.

	d.  adding to item 13 of his DD Form 214, dated 31 December 1979, the following awards:  LM, BSM (3rd OLC) with "V" Device, MSM, PH, AM, ARCOM (1st OLC), NDSM (1st OLC), AOM (Japan), VSM with one silver service star and one bronze service star, KSM with 3 bronze service stars, UNSM, CIB (2nd Award), RVNCM, RVNGC with silver star, 6 Overseas Service Bars, Expert Marksmanship Qualification Badge (Rifle M-16), GCM (9th Award), KDSM, ROKWSM, PUC, ROK-PUC, RVNGC with Palm (3rd Award), RVNCAHM-FC (2nd Award), and MUC (2nd Award).

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 three additional awards of the PH.

3.  The Board wants the applicant, his family, and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM 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)                                         AR20090020485



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