BOARD DATE:	  2 September 2010 

		DOCKET NUMBER:  AR20100009663 


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 (Report of Transfer or Discharge) to show his award of the Silver Star.

2.  The applicant states he was awarded the Silver Star but it was not included on his DD Form 214.  He further states he probably should have received the Purple Heart for a ruptured ear drum, but doesn't care about that.

3.  The applicant provides copies of his DD Form 214; Honorable Discharge Certificate; Headquarters, Americal Division, General Orders Number 6272, dated 10 July 1969; and his Silver Star award certificate.

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 enlisted in the Regular Army on 21 November 1966 for 3 years. He completed training and he was awarded military occupational specialty 91B (Medical Specialist).

3.  The available medical records show the applicant was treated for an ear infection on 23 August 1968 with a right tympanic membrane perforation being found on 17 September 1968.  He was reassigned to Vietnam with continued treatment.

4.  Records show the applicant arrived in Vietnam on 8 November 1968 and he was assigned to Headquarters and Headquarters Company, 1st Battalion, 52nd Infantry, 198th Infantry Brigade as a senior medical aidman.

5.  On 22 November 1968 he was seen by a medical corps captain at the
1st Battalion, 52nd Infantry Aid Station, where he was evaluated as sustaining a perforated right eardrum in September 1968 while diving into a swimming pool.  He was subsequently issued a permanent profile for hearing due to a hole in his right ear drum.

6.  Headquarters, Americal Division, General Orders Number 6272, dated 10 July 1969 awarded the applicant the Silver Star for gallantry in action against an armed hostile force in Vietnam from 13 February 1969 to 19 February 1969.

7.  On 2 August 1969, the applicant was admitted to the 91st Evacuation Hospital due to the perforation of his right ear drum.  On 7 August 1969, he was transferred to the Medical holding Company of the 106th General Hospital.  On 21 August 1969, a surgical procedure was performed to repair the hole in his right ear drum, which was successful.  After reexamination, he was returned to duty.

8.  The applicant was honorably released from active duty as an overseas returnee on 16 September 1969.  He had 2 years, 9 months, and 26 days of creditable service with no time lost.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Combat Medical Badge.

9.  The applicant's DA 20 (Enlisted Qualification Record) provides the following:

	a.  he was promoted to specialist five (SP5)/E-5 on 16 July 1968;

	b.  he served in Panama from 15 March 1968 through 30 September 1968;

	c.  he served in Vietnam from 8 November 1968 through 15 September 1969;

	d.  he received "excellent" conduct and efficiency ratings throughout his service;

	e.  he qualified as an expert with the .45 caliber pistol, as a sharpshooter with the M-14 rifle, and as marksman with the M-16 rifle; and 

	f.  his authorized awards are shown as the Silver Star, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Combat Medical Badge.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Paragraph 6d states that Department of the Army General Orders 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

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

	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.  paragraph 2-13 contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Counteroffensive Phase VI (2 November 1968 - 22 February 1969)
* Tet 69 Counteroffensive, 1969 (23 February 1969 - 8 June 1969)
* Vietnam Summer-Fall 1969 (9 June 1969 - 31 October 1969)

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was awarded the Silver Star but it was not included on his DD Form 214.  He also states he probably should have received the Purple Heart for a ruptured ear drum, but doesn't care about that.

2.  The Silver Star was awarded to the applicant on 10 July 1969 for actions in Vietnam during the period 13 February to 19 February 1969.  Therefore, his DD Form 214 should be corrected to show this award.

3.  Records show the applicant qualified expert with the .45 caliber pistol, sharpshooter with the M-14 rifle, and marksman with the M-16 rifle.  Therefore, his DD Form 214 should be corrected to show his weapons qualification badges.

4.  Records show the applicant received "excellent" conduct and efficiency ratings and he was promoted to E-5 during his service.  There is no indication of any disciplinary actions or a commander's disqualification for award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award the applicant the Army Good Conduct Medal (First Award) for his period 21 November 1966 through 16 September 1969 and to correct his DD Form 214 to show this award.

5.  All Soldiers assigned to Headquarters, USARV and its subordinate units during the period 20 July 1965 to 28 March 1973 were entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show this unit award.

6.  The applicant served in Vietnam during three campaign periods.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded Vietnam Service Medal.

6.  Evidence shows the applicant's right tympanic membrane (ear drum) perforation was not incurred as a result of hostile action.  Therefore, there is no basis for awarding him the Purple Heart in this case.

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 Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (First Award) for the period 21 November 1966 through 16 September 1969; and

	c.  adding to item 24 of his DD Form 214 the Silver Star, Army Good Conduct Medal (First Award), Vietnam Service Medal with three bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

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 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)                                         AR20100009663



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)