IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007261 


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 award of the Purple Heart and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to properly show award of the Bronze Star Medal with "V" Device.

2.  He states, in effect, an administrative error resulted in his award of the Bronze Star Medal with "V" Device being improperly annotated on his DD Form 214 without the "V."  He also states he should have been awarded the Purple Heart because he sustained shrapnel wounds to two areas of his chin and the fragments were removed by medics when he returned to the firebase.

3.  He provides copies of:

* Headquarters, 18th Engineer Brigade, General Orders Number 775, dated 18 September 1969
* a Bronze Star Medal Certificate
* a DD Form 214

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel requests favorable consideration of the applicant's request for award of the Purple Heart and correction of his DD Form 214 to properly show award of the Bronze Star Medal with "V" Device.


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 record shows he was inducted into Army of the United States on 9 July 1968 and held military occupational specialty 12B (Combat Demolitions Specialist).  The highest rank/pay grade he attained while serving on active duty was specialist five/pay grade E-5.  On 10 February 1970, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of the remainder of his service obligation.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded or authorized to wear the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal
* Vietnam Campaign Medal with Device
* Bronze Star Medal with Device

4.  His record contains (and he also provides) Headquarters, 18th Engineer Brigade, General Orders Number 775, dated 18 September 1969, which awarded him the Bronze Star Medal with "V" Device for heroism in connection with military ground operations against a hostile force in the Republic of Vietnam on 23 June 1969.  He also provides a copy of the certificate issued to him commemorating his receipt of this award.

5.  His DA Form 20 (Enlisted Qualification Record) contains the following pertinent information:

	a.  Item 31 (Foreign Service) shows he served a tour of duty in the Republic of Vietnam during the period 21 December 1968 through 9 February 1970.

	b.  Item 38 (Record of Assignments) shows that during his tour of duty in the Republic of Vietnam he served in Company D, 299th Engineer Battalion (Combat).  Item 38 does not show the applicant was placed in a "patient" status at a medical treatment facility at any time during his period of service.

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

	d.  Item 40 (Wounds) is blank.

	e.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

6.  There is no evidence in the available record and he has not provided any evidence showing he was awarded the Purple Heart.

7.  There is no evidence in the available record and he has not provided any evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his name does not appear on the Vietnam casualty roster.

8.  A 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 Purple Heart pertaining to the applicant.

9.  Department of the Army General Orders Number 43, dated 1970, awarded the Valorous Unit Award to his unit for achievements during his period of assignment.

10.  Department of the Army General Orders Number 8, dated 1974, awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to his unit for achievements during his period of assignment.

11.  Army Regulation 600-8-22 provides for award of the Vietnam Service Medal. 
Appendix B shows the campaigns for Vietnam.  During his tour in Vietnam he participated in four campaigns:  the Vietnam Counteroffensive Phase VI, the Tet 69 Counteroffensive, the Vietnam Summer-Fall 1969, and the Vietnam Winter-Spring 1970.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

12.  Army Regulation 600-8-22 (Military Awards) provides 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.

13.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should be awarded the Purple Heart and his DD Form 214 should be corrected to properly show award of the Bronze Star Medal with "V" Device were carefully considered and determined to have partial merit.

2.  General orders awarded him the Bronze Star Medal with "V" Device for heroism.  The evidence shows this award was improperly annotated on his DD Form 214 as the Bronze Star Medal with Device.  Therefore, he is entitled to have his DD Form 214 corrected to show receipt of the Bronze Star Medal with "V" Device.

3.  The evidence shows the Republic of Vietnam Campaign Medal with Device (1960) was improperly annotated on his DD Form 214 as the Vietnam Campaign Medal with Device.  Therefore, he is entitled to correction of his DD Form 214 to properly show this campaign medal.

4.  General orders awarded his unit the Valorous Unit Award and 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 these unit awards.

5.  Records show he was awarded the Vietnam Service Medal.  The evidence shows he participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for wear of four bronze service stars to be affixed to his Vietnam Service Medal.

6.  The evidence of record shows he 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 he was disqualified by his chain of command from receiving the Army Good Conduct Medal.  Therefore, he is entitled to award of the Army Good Conduct Medal (First award) for the period 9 July 1968 through 10 February 1970 and entitled to correction of his records to show this award.

7.  His record is void of any orders or other documents indicating he was awarded the Purple Heart by proper authority while serving on active duty.  Additionally, a review of the ADCARS database failed to reveal any orders for the Purple Heart pertaining to him and his name does not appear on the Vietnam casualty roster.

8.  There is no evidence in the available record and the applicant has not provided sufficient evidence which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.

9.  In the absence of corroborating evidence that he 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 awarding him the Purple Heart.  This action in no way diminishes the sacrifices made by him 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 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.  awarding him the Army Good Conduct Medal (First Award) for the period 9 July 1968 through 10 February 1970;

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

		(1)  the Bronze Star Medal with Device,

		(2)  the Vietnam Service Medal, and

		(3)  the Vietnam Campaign Medal with Device; and

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

		(1)  the Bronze Star Medal with "V" Device,

		(2)  the Republic of Vietnam Campaign Medal with Device (1960),

		(3)  the Army Good Conduct Medal (First Award),

		(4)  the Vietnam Service Medal with four bronze service stars,

		(5)  the Valorous Unit Award, and

		(6)  the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The Board further determined 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.



      _______ _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)                                         AR20100007261



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ABCMR Record of Proceedings (cont)                                         AR20100007261



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