IN THE CASE OF:	

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007378 


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.  He also requests that his record be corrected to show his rank was restored to specialist (SP4)/E-4. 

2.  The applicant states the Purple Heart he was awarded is not listed on his DD Form 214 and his rank was SP4/E-4 instead of private/E-1.

3.  The applicant provides his DD Form 214 and a Certificate of Appreciation. 

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 DD Form 214, item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) show his rank as "SP4" and "E4" respectively.  That is clearly an error as his records show he accepted nonjudicial punishment on 24 February and 21 March 1970 for being absent without leave.  He was reduced to pay grade E-3 on the first occasion and to pay grade E-2 on the second occasion.  Special Orders Number 140 Extract, dated 15 July 1970, show he was relieved from active duty and transferred to the Army Reserve effective 24 July 1970 in the rank of private two/pay grade E-2.

3.  However, it has long been an unwritten policy of the ABCMR not to make an applicant worse off than when he applied to the ABCMR.  For this reason, the ABCMR will not correct items 5a and 5b of his DD Form 214 to show a lower rank and pay grade.  As such, this portion of his request will not be further addressed.

4.  The applicant's military records show he was inducted into the Army of the United States on 9 July 1968.  He completed initial entry training and was awarded military occupational specialty MOS 11D (armor intelligence specialist).  The highest rank/pay grade he held was SP4/E-4.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he performed duties in MOS 11D as a scout driver while assigned to A Troop, 2d Squadron, 1st Cavalry, 4th Infantry Division in the Republic of Vietnam (RVN) during the period 24 December 1968 to 23 May 1969.  This form further shows he was assigned to the Medical Holding Company, 106th General Hospital in a patient status from 24 May to 7 June 1969.  He was transferred to the Medical Holding Detachment, Fort Belvoir, Virginia on 8 June 1969 in a patient status.  He was further assigned to Fort Knox, Kentucky on 16 September 1969.

6.  On 24 July 1970, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He had completed 2 years of creditable active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal and Vietnam Service Medal and he was authorized the Expert Marksmanship Qualification Badge with Rifle Bar.



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, revealed General Orders Number 2141 awarding the applicant the Purple Heart for wounds received by a hostile force. 

9.  The applicant's records show he is entitled to additional awards which he did not request and are not shown on his DD Form 214.

10.  Appendix B, Army Regulation 600-8-22 (Military Awards) shows the campaigns for Vietnam.  During the applicant's tour in Vietnam he participated in the Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969) and the TET 69 Counteroffensive (23 February 1969 - 8 June 1969) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

11.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

12.  Department of the Army General Orders Number 8, dated 1974, announced   award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

13.  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.  It states 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 service at the time of release from active duty, retirement or discharge.  It states that the grade in which serving at the time of separation would be entered in item 5a.



DISCUSSION AND CONCLUSIONS:

1.  General orders show the applicant was awarded the Purple Heart.  Therefore, he is entitled to have his DD Form 214 corrected to show this award.

2.  The applicant's records show he was authorized the Vietnam Service Medal and that he participated in two campaigns while serving in the RVN.  Therefore, he is entitled to correction of his DD Form 214 to show he was awarded two bronze service stars to be worn on the Vietnam Service Medal.

3.  The applicant's records indicate he was awarded the Purple Heart for injuries received on 18 May 1969.  His DA Form 20 shows he was a patient from late May until September 1969 and that during this time he was transferred to Fort Belvoir.  In the absence of evidence to the contrary it appears he was evacuated from Vietnam prior to completing 6 months of service due to wounds resulting from hostile action.  As such, the preponderance of evidence indicates he was authorized the Republic of Vietnam Campaign Medal with Device (1960).

4.  The applicant was assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.

5.  In view of the foregoing, the applicant's records should be corrected as shown below.

BOARD VOTE:

____X___  _____X__  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the DD Form 214 of the individual concerned be corrected by: 

	a.  deleting the Vietnam Service Medal from item 24; and

	b.  adding the Purple Heart, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960) and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to item 24.




      _______ _   __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)                                         AR20100007378



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)