IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090021193 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart with First Oak Leaf Cluster (1OLC), the Bronze Star Medal with 1OLC, the Air Medal with 1OLC [correctly depicted as with Numeral "2"], the Army Commendation Medal, and any other awards or decorations to which he is entitled.

2.  The applicant states he recently discovered the Purple Heart with 1OLC, the Bronze Star Medal with 1OLC, the Air Medal with 1OLC, and the Army Commendation Medal do not appear on his DD Form 214.

3.  The applicant provides copies of seven general orders and two award certificates.

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's record shows he was inducted into Army of the United States and entered active duty on 18 January 1968.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was staff sergeant (SSG)/pay grade E-6.  The applicant was retired due to permanent physical disability effective 1 September 1970.

3.  The applicant's record shows he served a tour of duty in the Republic of Vietnam during the period 29 December 1968 through 17 September 1969.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam he served in Company B, 1st Battalion (Airmobile) of the 506th Infantry Regiment during the period 15 January 1969 through 29 August 1969.  On 30 August 1969, he was medically evacuated to the 249th General Hospital located at Camp Drake, Japan and his duty status was changed to "Patient."   On 19 September 1969, he was further evacuated to the Medical Holding Company of the Valley Forge General Hospital located in Phoenix, Pennsylvania.

5.  Item 38 of the applicant's DA Form 20 also shows he received conduct and efficiency ratings of "excellent" for each of his duty assignments.  The applicant's record does not contain any derogatory information or a record of a commander's disqualification for award of the Good Conduct Medal.

6.  Item 40 (Wounds) of the applicant's DA Form 20 shows he sustained multiple fragmentation wounds to both legs on 24 August 1969.

7.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 9400, dated 23 July 1969, showing he was awarded the Army Commendation Medal for meritorious achievement in the Republic of Vietnam during the period 1 January 1969 to 31 May 1969.

8.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 10278, dated 7 August 1969, showing he was awarded the Bronze Star Medal with "V" Device for heroism in ground combat against a hostile force in the Republic of Vietnam on 18 May 1969.

9.  The applicant's record contains (and he also provides copies of) three separate general orders showing he was awarded the Purple Heart (First Award) for wounds received in action in the Republic of Vietnam on 24 August 1969.  The orders issuing authorities, numbers, and dates are as indicated below:

* Headquarters, 85th Evacuation Hospital (Semi-mobile), General Order Number 99, dated 25 August 1969
* Headquarters, 101st Airborne Division (Airmobile), General Orders Number 11887, dated 10 September 1969
* Valley Forge General Hospital, General Orders Number 64, dated 17 November 1969

10.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 11466, dated 30 August 1969, showing he was awarded the Bronze Star Medal for meritorious service in connection with ground operations against a hostile force in the Republic of Vietnam during the period 1 January 1969 to 31 August 1969.

11.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 12056, dated 13 September 1969, showing he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam on 30 July 1969.  The applicant also provides a copy of the certificate commemorating his receipt of this award.

12.  The applicant provides a copy of certificate showing he was awarded the Air Medal (Second Award) for meritorious achievement while participating in aerial flight in the Republic of Vietnam during the period 1 April 1969 to 30 September 1969 by authority of the Commanding General of the 101st Airborne Division (Airmobile) on 5 December 1969.  

13.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 and Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 show he was awarded or authorized to wear the:

* Purple Heart
* Bronze Star Medal with "V" Device
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Expert Marksmanship Badge with Machine Gun Bar [M-60]
* Sharpshooter Marksmanship Badge with Rifle Bar [M-14]

14.  The Vietnam Casualty Roster shows the applicant sustained a wound as the result of hostile fire on 24 August 1969.  There is no evidence in the available records which shows the applicant was wounded again during a different incident.

15.  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 U.S. Army Human Resources Command, failed to reveal any orders for the Air Medal (Second Award) pertaining to the applicant.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 personnel, and the medical treatment must have been made a matter of official record.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force explosion, or agent.

17.  Army Regulation 600-8-22 states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which are the Purple Heart and the Bronze Star Medal.

18.  Paragraph 1-18 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

19.  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 would 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 would be awarded the Purple Heart directly by the hospital commander rendering treatment.

20.  Army Regulation 672-5-1 (Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.

21.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This regulation shows the 1st Battalion of the 506th Infantry Regiment, the unit to which the applicant was assigned while serving in the Republic of Vietnam, was cited for award of:

	a.  the Presidential Unit Citation for actions during the period 10 through 21 May 1969 by Department of the Army General Orders Number 16, dated 1972; and 

	b.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during the period 19 July 1968 through 14 May 1969 by Department of the Army General Orders Number 43, dated 1970.

22.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam. During the applicant's tour in Vietnam he participated in three campaigns:  the Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and the Vietnam Summer-Fall.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

23.  Army Regulation 600-8-22 states the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Arabic numerals are used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DD Form 214 should be corrected to show award of the Purple Heart with 1OLC, the Bronze Star Medal with 1OLC, the Air Medal with Numeral 2, the Army Commendation Medal, and any other awards or decorations to which he is entitled were carefully considered and determined to have partial merit.

2.  General orders awarded the applicant the Army Commendation Medal.  Therefore, he is entitled to have his records corrected to show receipt of this award.

3.  General orders awarded the applicant the Bronze Star Medal with "V" Device and the Bronze Star Medal for service.  Therefore, he is entitled to have his records corrected to show receipt of the Bronze Star Medal with "V" Device and 1OLC.

4.  General orders awarded the applicant's unit the Presidential Unit Citation for accomplishments during his tenure in the unit.  Therefore, he is entitled to have his records corrected to show this unit award.

5.  General orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for accomplishments during his tenure in the unit.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

6.  Records show that the applicant was awarded the Vietnam Service Medal.  Evidence shows that he participated in three campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his previously awarded Vietnam Service Medal.

7.  Evidence of record shows the applicant completed a period of honorable service during which he received all “excellent” conduct and efficiency ratings and had no convictions by a court-martial.  Additionally, there is no evidence that the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  Therefore, he is entitled to award of the Good Conduct Medal (first award) for the period of 18 January 1968 to 1 September 1970 and entitled to correction of his records to show this award.

8.  General orders awarded the applicant the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam on 
30 July 1969.  Therefore, he is entitled to have his records corrected to show receipt of this award.
9.  The applicant provides a copy of certificate showing he was awarded the Air Medal (Second Award) for meritorious achievement while participating in aerial flight in the Republic of Vietnam during the period 1 April 1969 to 30 September 1969 by authority of the Commanding General of the 101st Airborne Division (Airmobile) on 5 December 1969.

10.  Although both the applicant's records and the ADCARS database are void of general orders showing he was awarded the Air Medal (Second Award), the 101st Airborne Division (Airmobile) routinely awarded members of the division Air Medals for the duration of their tours in the Republic of Vietnam because their primary means of transportation within theater was via helicopter.  Therefore, it is reasonable to presume the certificate provided by the applicant is valid and his records should be corrected to show receipt of the Air Medal with Numeral "2" accordingly.

11.  Evidence shows the applicant sustained shrapnel injuries to both legs on    24 August 1969 while serving in the Republic of Vietnam and was subsequently awarded the Purple Heart for an incident on this date in three separate general orders issued by his unit and two hospitals where he received treatment.

12.  The Vietnam Casualty Roster shows the applicant sustained a wound as the result of hostile fire on 24 August 1969.  There is no evidence in the available records and the applicant has failed to provide any evidence showing he was wounded a second time during a different incident or that his additional wound was treated by medical personnel and made a matter of official record.

13.  Evidence shows three different orders issuing authorities issued the applicant orders awarding him the Purple Heart for the exact same incident.

14.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action during another incident, and that his wound was treated by medical personnel and made a matter of official record, there is insufficient evidence upon which to base award of the Purple Heart with 1OLC in this case.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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.  awarding the applicant the Good Conduct Medal (first award) for the period 18 January 1968 to 1 September 1970;

	b.  deleting the following awards in item 24 of his DD Form 214:

		(1)  the Bronze Star Medal with "V" Device; and 

		(2)  the Vietnam Service Medal; and

	c.  adding the following awards to item 24 his DD Form 214:

		(1)  the Good Conduct Medal (first award);

		(2)  the Bronze Star Medal with "V" Device and 1OLC;

		(3)  the Army Commendation Medal;

		(4)  the Air Medal with Numeral "2";

		(5)  the Republic of Vietnam Gallantry Cross with Palm Unit Citation; 

		(6)  the Presidential Unit Citation; and

		(7)  the Vietnam Service Medal with three bronze service stars.


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 Purple Heart with 1OLC.



      _______ _   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)                                         AR20090021193





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ABCMR Record of Proceedings (cont)                                         AR20090021193



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