IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007914 


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, in effect, correction of his records to show award of the Silver Star, Purple Heart, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and any other unit citations he may have earned.

2.  The applicant states he earned the Purple Heart for a 2-inch cut on his right calf and a cut on his chin from a piece of shrapnel.  Some of the shrapnel has come out since.  He also states his back and both of his knees were hurt from jumping.  At the time, he went to a base camp in Vietnam and he was the only military member there.  The base camp was hit and he was told he would be recommended for the Silver Star.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 15 May 1969 and held military occupational specialty 11F (Operations and Intelligence Specialist).

3.  His records also show he served in the Republic of Vietnam from on or about 1 April 1970 to on or about 29 August 1971.  He was assigned to Company E, 4th Battalion, 503rd Infantry, 173rd Airborne Brigade.

4.  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 30 November 1971 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, two overseas service bars, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal, Army Commendation Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and Parachutist Badge.

6.  Item 38 of his DA Form 20 (Enlisted Qualification Record) shows he was transferred to the Medical Hospital Detachment, U.S. Army Hospital, Ryukyu Islands, in a patient status on 16 August 1971 and ultimately transferred to the U.S. Army Medical Activity, Fort Riley, KS, on 10 September 1971.  However, there is no clear indication of the nature of his illness or injury as his medical records are not available for review with this case.

7.  Item 40 (Wounds) of his DA Form 20 is blank.

8.  His name is not shown on the Vietnam casualty roster.

9.  There are no general orders in his records that show he was awarded the Purple Heart or the Silver Star.

10.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart or Silver Star orders on file for him.

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

	a.  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.

	b.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment to the 4th Battalion, 503rd Infantry, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 51, dated 1971, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 5, dated 1973.

13.  Appendix B of Army Regulation 600-8-22 shows he participated in four campaigns during his tour of duty in the Republic of Vietnam:  Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970), DA Sanctuary Counteroffensive (1 May 1970 to 30 June 1970), Vietnam Counteroffensive Phase VII (1 July 1970 to 30 June 1971), and Consolidation I (1 July 1971 to 30 November 1971).

14.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to U.S. Army Human Resources Command, Soldier Programs and Services Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show the Silver Star, Purple Heart, Republic of Vietnam Gallantry Cross with Pam Unit Citation, and any other unit citations he may have earned.

2.  General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

3.  The evidence of record shows he was awarded the Vietnam Service Medal and he participated in four campaigns while serving in the Republic of Vietnam. Therefore, he is entitled to four bronze service stars to be affixed to his Vietnam Service Medal and correction of his DD Form 214 as such.

4.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  The criteria for an award of the Purple Heart 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.

5.  The applicant's service in Vietnam, multiple awards and decorations, and sincerity are not in question.  However, although his DA Form 20 shows he was in a patient status from Vietnam and ultimately to Fort Riley, KS, there is no indication of the nature of his illness or injury and what caused it.  His name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, his record is void of any orders that show he was awarded the Purple Heart, and his medical records are not available for review to indicate if he was wounded and/or injured or treated as a result of hostile action.

6.  There is no evidence in his records that shows he was wounded or injured as a result of hostile action or treated for such wounds and that his treatment was made a matter of official records.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart.
7.  With respect to the Silver Star, there is no evidence in the available records of a recommendation for or award of the Silver Star.  The governing Army regulation states for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required for award of the Silver Star.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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 adding to his DD Form 214 the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

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 Silver Star and 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)                                         AR20100007914



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)