IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021015 


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 to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and multiple awards of the Bronze Star Medal and the Army Commendation Medal.

2.  The applicant states his Standard Form (SF) 88 (Report of Medical Examination) shows he sustained fragment wounds to his legs and his DA Form 20 (Enlisted Qualification Record), Item 41 (Awards and Decorations), shows award of the Purple Heart by General Orders Number 17847, Headquarters, 23rd Infantry Division.  He also states he earned multiple Bronze Star Medals and Army Commendation Medals and these awards should be reflected on his DD Form 214 as well.

3.  The applicant provides copies of pages 1 & 4 of his DA Form 20, his SF 88, and his DD Form 214.

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.  His military records show he enlisted in the Regular Army in pay grade E-1 on 3 September 1969, for 3 years.  He completed training and he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  He served in Vietnam from 5 February 1970 to 21 December 1970 with Troop C,
1st Squadron, 1st Calvary.

3.  General Orders Number 174, issued by Headquarters, Americal Division, dated 23 June 1970, show he was awarded the Combat Infantryman Badge effective 23 June 1970.

4.  General Orders Number 7942, issued by the same headquarters, dated 4 July 1970, show he was awarded the Army Commendation Medal for meritorious achievement in connected with military operations against a hostile force in the Republic of Vietnam from 1 February 1970 to 31 May 1970.  There are no other orders in his records awarding him additional Army Commendation Medals.

5.  General Orders Number 16387, issued by Headquarters, 23rd Infantry Division, dated 16 December 1970, show he was awarded the Bronze Star Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from February 1970 to December 1970.  There are no other orders in his records awarding him additional Bronze Star Medals.

6.  He submitted a copy of an SF 88, dated 22 February 1972, that was completed as part of his expiration of term of service (ETS) medical examination. It shows he sustained fragment wounds to the legs - mild.  However, this form does not contain any entry pertaining to the date and place of his injury.

7.  He was honorably released from active duty in the pay grade of E-5 on
8 March 1972 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the following awards:

* Bronze Star Medal
* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

8.  There is no entry in  40 (Wounds) of his DA Form 20 showing he was wounded in action as a result of hostile enemy action; however,  Item 41 shows he was awarded the Purple Heart by General Orders Number 17847, issued by Headquarters, 23rd Infantry.  It also shows in Item 38 (Record of Assignments) that he received "excellent" conduct and efficiency ratings throughout his service.

9.  The Vietnam casualty list was reviewed to determine if he had been wounded in action while he served in Vietnam.  His name is not shown on this list.

10.  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 awarding him the Purple Heart or any additional Bronze Star and Army Commendation Medals pertaining to the applicant.  Additionally, a review of the general orders issued by the 23rd Infantry Division revealed that General Orders Number 16835, dated
31 December 1970, was the last order issued by that headquarters for 1970.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

12.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal 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.  There must have been no convictions by a court-martial.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for 

campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Paragraph 6d states that Department of the Army General Orders 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the following units:

	a.  Headquarters, United States Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973.

	b.  Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

14.  Army Regulation 600-8-22, paragraph 2-13, of contains the regulatory guidance on the Vietnam Service Medal.  It states a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during his tour in Vietnam he participated in the following three campaigns:

* Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970)
* Sanctuary Counteroffensive (1 May 1970 - 30 June 1970)
* Vietnam Counteroffensive, Phase VII (1 July 1970 - 30 June 1971)

15.  U.S. Army Republic of Vietnam Regulation Number 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal could be awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

16.  Army Regulation 600-8-22 states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

17.  Title 10, U.S. Code, section 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.

18.  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.  General Orders Number 17847, as listed in Item 41 of the applicant's DA Form 20, awarding him the Purple Heart was not available for review; however, available orders show he was awarded the Bronze Star Medal and the Combat Infantryman Badge in connection of military operations against a hostile force during his service in Vietnam between 5 February and 21 December 1970.  The Purple Heart entry on his DA Form 20 combined with the entry on his ETS medical examination that shows he had fragment wounds to his legs was also considered.  Despite the lack of the hardcopy orders awarding him the Purple Heart, any doubt should be resolved in favor of the applicant.  Therefore, he is entitled to correction of his records to show the Purple Heart.

2.  The applicant completed a qualifying period of service for the first award of the Army Good Conduct Medal.  His records show he received "excellent" conduct and efficiency ratings throughout his service.  There is no evidence in the available records which show the applicant was disqualified for this award.  Therefore, he is entitled to award of the Good Conduct Medal (1st Award) for the period 3 September 1969 through 8 March 1972 and to correction of his records to show this award.

3.  The evidence confirms the applicant participated in three campaigns while serving in Vietnam.  Therefore, he is also entitled to award of three bronze service stars for wear on his already-awarded Vietnam Service Medal.

4.  General orders awarded all units the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service in Vietnam.  Therefore, it would also be appropriate to correct his records to show this unit award.

5.  The applicant contends he was awarded multiple awards of the Bronze Star Medal and the Army Commendation Medal; however, he has provided no additional orders showing he was awarded more than one Bronze Star Medal and Army Commendation Medal.  There is also no evidence found either in his service personnel records or in the ADCARS database to support adding any additional awards of the Bronze Star or Army Commendation Medals to his DD Form 214.

6.  While the available evidence is insufficient for awarding the applicant additional Bronze Star Medals and Army Commendation Medals, this in no way affects his right to pursue his claim for additional Bronze Star and Army Commendation Medals by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 from Item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (1st Award) for the period
3 September 1969 to 8 March 1972;

   c.  adding to Item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (1st Award), Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and 

   d.  providing him a correction document as a result of these changes.

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 correction of his DD Form 214 to show additional awards of the Bronze Star Medal and the Army Commendation Medal.



      ___________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)                                         AR20090021015



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ABCMR Record of Proceedings (cont)                                         AR20090021015



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