IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008684 


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 record to show award of the Purple Heart and Silver Star.

2.  The applicant states that he was injured during Operation Manhattan in 1967 while serving in the Republic of Vietnam.  He states he was treated by medical personnel and that documentation exists in his military medical records.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 was inducted into the Army of the United States on 15 July 1966.  He completed his initial entry training and was initially awarded military occupational specialty (MOS) 13A (Field Artilleryman).

3.  The applicant served in the Republic of Vietnam from 17 December 1966 to 16 December 1967 as a cannoneer with Battery B, 8th Battalion, 6th Artillery, 1st Infantry Division, and then as a unit supply specialist with Headquarters and Headquarters Company, 1st Supply and Transport Battalion, 1st Infantry Division.

4.  In pertinent part, item 22 (Military Occupational Specialties) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tour in the Republic of Vietnam he was awarded primary MOS 76Y (Supply Specialist) on 14 August 1967.

5.  Item 40 (Wounds) of the applicant's DA Form 20 does not show an entry for wounds received in hostile action.

6.  The applicant's service personnel records do not contain general orders awarding him the Silver Star or the Purple Heart.

7.  The applicant was honorably released from active duty on 12 July 1968 and transferred to the U.S. Army Reserve Control Group (Annual Training).  The DD Form 214 issued to him shows he competed 1 year, 11 months, and 28 days of active Federal service with 1 year of foreign service.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows these awards:

* Vietnam Service Medal with one bronze service star
* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar

9.  The applicant's name is not listed on the Vietnam casualty roster as being injured during combat operations.  His military medical records are devoid of documentation showing he was wounded and that he received medical treatment from Armed Forces medical personnel for his wounds during combat operations.

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 U.S. Army Human Resources Command, failed to reveal any orders awarding him the Purple Heart or the Silver Star.

11.  References:

	a.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services has been wounded, killed, or who has died as a result of a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.

	b.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, provided that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that was received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation states the Silver Star was 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 were required.

	d.  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.

	e.  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, AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  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.  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.

2.  Item 40 of the applicant's DA Form 20 does not show an entry for wounds incurred through hostile or enemy action requiring medical treatment.  In the absence of military and medical records showing that the applicant was wounded and treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence, specifically documented medical evidence from military medical personnel of the Armed Forces who provided medical treatment to the applicant when he was injured during Operation Manhattan in the Republic of Vietnam in 1967.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices and heroic actions made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  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)                                         AR20100008684



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)