IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100009098 


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 two awards of the Purple Heart.

2.  The applicant states he was awarded two Purple Hearts, but they are not recorded on his DD Form 214.

3.  The applicant provides copies of an award order and a certificate for the Purple Heart, and his DD Form 214.

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 5 November 1968.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) that he served in the Republic of Vietnam from 20 April 1969 through 8 June 1970;

	b.  item 38 (Record of Assignments) that he served in:

		(1)  duty MOS 11B while assigned to Company A, 4th Battalion,
39th Infantry, 9th Infantry Division, from 30 April through 8 May 1969;

		(2)  duty MOS 11B while assigned to Company D, 4th Battalion, 39th Infantry, 9th Infantry Division, from 9 May through 14 July 1969; and

		(3)  duty MOS 11B while assigned to Company D, 2nd Battalion, 60th Infantry, 9th Infantry Division, beginning 15 July 1969;

	c.  item 39 (Campaigns) that he served in Vietnam during the Tet 1969 Counteroffensive campaign;

	d.  item 40 (Wounds) that he sustained a fragment wound to his right side on 16 May 1969; and

   e.  item 41 (Awards and Decorations) the National Defense Service Medal, Vietnam Service Medal, Purple Heart, Army Commendation Medal with "V" Device (1st Oak Leaf Cluster), Air Medal (2nd Award), Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, and Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.

4.  Headquarters, 9th Infantry Division, General Orders Number 5776, dated
20 May 1969, awarded the applicant the Purple Heart for wounds received in military operations against a hostile force in the Republic of Vietnam on 16 May 1969.

5.  Headquarters, 9th Infantry Division, Special Orders Number 232, dated
20 August 1969, promoted the applicant to sergeant (SGT)/E-5 in MOS 11B4O, effective 6 August 1969.

6.  The applicant's DD Form 214 shows he was honorably released from active duty on 10 June 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

	a.  At the time he had completed 1 year, 7 months, and 6 days of net active service and 1 year, 1 month, and 20 days of foreign service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, Bronze Star Medal, and the Air Medal.

7.  There is no evidence in the applicant's military personnel records that shows he was wounded in action in Vietnam on more than one occasion.  There is no order or other evidence that he received a second award of the Purple Heart.

8.  A review of The Adjutant General's Office, Casualty Division's Vietnam Casualty Roster shows the applicant's name is listed once as a casualty on
16 May 1969 under casualty status code "24."  This casualty code refers to "hostile wounded in action, not serious, not hospitalized."

9.  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 United States Army Human Resources Command, failed to reveal any additional orders for
the Purple Heart pertaining to the applicant.

10.  In support of his application, the applicant provides the following documents:

   a.  Headquarters, 9th Infantry Division, General Orders Number 5776, dated 20 May 1969, that awarded him the Purple Heart for wounds received in military operations against a hostile force in the Republic of Vietnam on 16 May 1969; and

   b.  DA Form 4980-10 (Purple Heart Certificate), dated 20 May 1969, presented to him for wounds received in action in the Republic of Vietnam on
16 May 1969.

11.  A review of the applicant's military personnel records reveals that he may be authorized additional awards that are not shown on his DD Form 214.

12.  Headquarters, Third Basic Combat Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, CA, Special Orders Number 1, dated 3 January 1969, awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.

13.  Headquarters, Second Advanced Individual Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, Special Orders Number 44, dated
27 February 1969, awarded the applicant the First Class Gunner [Sharpshooter Marksmanship Qualification] Badge with Machinegun (M-60) Bar.

14.  Headquarters, Second Advanced Individual Training Brigade, U.S. Army Training Center, Infantry, Fort Ord, Special Orders Number 49, dated
5 March 1969, awarded the applicant the Marksman Marksmanship Qualification Badge with Automatic Rifle (M-16) Bar.

15.  Headquarters, 9th Infantry Division, General Orders Number 6398, dated
5 June 1969, awarded the applicant the Army Commendation Medal with "V" Device for heroism in military operations against an armed hostile force in the Republic of Vietnam on 3 May 1969.

16.  Headquarters, 9th Infantry Division, General Orders Number 7424, dated
25 June 1969, awarded the applicant the Army Commendation Medal (1st Oak Leaf Cluster) for meritorious achievement in military operations against an armed hostile force in the Republic of Vietnam from April to June 1969.

17.  Headquarters, 9th Infantry Division, General Orders Number 9416, dated
9 July 1969, awarded the applicant the Air Medal for meritorious achievement while participating in sustained aerial flight in the Republic of Vietnam from
25 March to 1 May 1969.

18.  Headquarters, 9th Infantry Division, General Orders Number 9630, dated
10 July 1969, awarded the applicant the Air Medal (1st Oak Leaf Cluster) for meritorious achievement while participating in sustained aerial flight in the Republic of Vietnam from 15 May to 20 June 1969.

19.  Headquarters, II Field Force Vietnam, General Orders Number 4505, dated
4 December 1969, awarded the applicant the Air Medal (Second Award) [1st Oak Leaf Cluster] for meritorious achievement while participating in sustained aerial flight in the Republic of Vietnam from 1 June to 31 July 1969.

20.  A Disposition Form, dated 10 February 1970, shows the applicant voluntarily extended his foreign service tour for a period of 49 days.  His commander recommended approval of the request, he rated the applicant's conduct and efficiency as "excellent," and the request was approved on 17 February 1970.

21.  Item 38 of the applicant's DA Form 20 shows that he received "excellent" conduct and efficiency ratings throughout his service.

22.  The applicant's DD Form 214 shows he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.

	a.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states that one bronze service star is authorized with this service medal for each Vietnam campaign a member is credited with participating in.

	b.  Table B-1 contains a list of Vietnam Conflict campaigns and it shows that during the applicant's tour in Vietnam he participated in the following four campaigns:

* Tet Counteroffensive 1969 (23 February - 8 June 1969)
* Vietnam Summer-Fall 1969 (9 June - 31 October 1969)
* Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970)
* Sanctuary Counteroffensive (1 May - 30 June 1970)

23.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows that at the time of the applicant's assignment to the 4th Battalion, 39th Infantry, the regiment was awarded the:

	a.  Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period January - June 1969 by Department of the Army General Orders
(DAGO) 59, dated 1969 and

	b.  Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 19 December 1966 – 28 June 1969 by DAGO 59, dated 1969.

24.  There are no orders or other evidence in the applicant's military personnel records that shows he was awarded the Combat Infantryman Badge.

25.  Army Regulation 600-8-22 states there are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit 


during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Appendix V of U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) states that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted Soldiers who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

26.  Army Regulation 600-8-22 states that the Purple Heart is awarded for 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 medical personnel, and the medical treatment must have been made a matter of official record.

27.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.

28.  Army Regulation 600-8-22 provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The ribbon denotes the first award.  The numeral 2 denotes the second award of the Air Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show two awards the Purple Heart.

2.  The evidence of record shows that the applicant's name is listed on the Vietnam Casualty Roster as having been wounded in action in the Republic of Vietnam on 16 May 1969.

   a.   General orders awarded the applicant the Purple Heart for wounds received in action on 16 May 1969 and he received a certificate commemorating his award of the Purple Heart.  Thus, the evidence confirms the applicant's award of the Purple Heart for wounds received in action on 16 May 1969.  Therefore, his DD Form 214 should be corrected to show the Purple Heart.


   b.  There is no evidence in the applicant's military service records that shows he was wounded as a result of hostile action on more than one occasion in Vietnam.  His name is listed only once on the Vietnam Casualty Roster.  In addition, there are no orders that show he received a second award of the Purple Heart.  Therefore, there is insufficient evidence to support the applicant's claim to a second award of the Purple Heart.

3.  Three separate general orders awarded the applicant the Air Medal for meritorious achievement while participating in sustained aerial flight in the Republic of Vietnam.  Thus, he is entitled to three awards of the Air Medal.

4.  Two separate general orders awarded the applicant the Army Commendation Medal with "V" Device and Army Commendation Medal (1st Oak Leaf Cluster).  Thus, he is entitled to two awards of the Army Commendation Medal.

5.  Records show the applicant served a qualifying period of active duty enlisted service for award of the Army Good Conduct Medal.

* He was promoted to SGT with just over 9 months of active duty service
* He had no time lost
* There is no evidence of any disqualifying information
* He received "excellent" conduct and efficiency ratings throughout his service 

6.  Based on the available evidence, it would be appropriate to award the applicant the first award of the Army Good Conduct Medal for the period
5 November 1968 through 10 June 1970.

7.  The applicant qualified for award of the Vietnam Service Medal and he served in four campaigns during his service in Vietnam.  Thus, he is entitled to 4 bronze service stars for wear on his already-awarded Vietnam Service Medal.

8.  General orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Thus, he is entitled to correction of his records to show these two foreign unit awards.

9.  There are no orders or other evidence that shows the applicant was awarded the Combat Infantryman Badge.  However, the evidence shows the applicant was awarded MOS 11B, he served in duty MOS 11B as an infantryman for more 


than 13 months while assigned to infantry units in Vietnam, and he achieved the rank of SGT in less than 10 months.  In addition, he was awarded the Army Commendation Medal with "V" Device for heroism in military operations against of hostile force in Vietnam on 3 May 1969.  Thus, the available evidence supports award of the Combat Infantryman Badge in this case.  Therefore, it would be appropriate to award him the Combat Infantryman Badge and to show the badge on his DD Form 214.

10.  Special orders awarded the applicant the First Class Gunner [Sharpshooter Marksmanship Qualification] Badge with Machinegun (M-60) Bar and the Marksman Marksmanship Qualification Badge with Rifle (M-14) and Automatic Rifle (M-16) Bars.

11.  In view of the foregoing, it would be appropriate to correct the applicant's records to show all of his authorized awards and decorations, as recommended below.

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.  deleting from item 24 of his DD Form 214 the Army Commendation Medal, Air Medal, and the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (First Award) for exemplary conduct, efficiency, and fidelity from 5 November 1968 to 10 June 1970;

	c.  awarding him the Combat Infantryman Badge for satisfactory performance of duty against an active hostile ground force in the Republic of Vietnam while assigned to Company D, 4th Battalion, 39th Infantry, during the period 3 May 1969 to 14 July 1969; and
	d.  adding to item 24 of his DD Form 214 the Purple Heart, Air Medal with Numeral 3, Army Commendation Medal (1st Oak Leaf Cluster) with "V" Device, Army Good Conduct Medal (First Award), Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with (M-60) Machinegun Bar, and the Marksman Marksmanship Qualification Badge with (M-14) Rifle and (M-16) Automatic Rifle Bars.

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 a second 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)                                         AR20100009098



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ABCMR Record of Proceedings (cont)                                         AR20100009098



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