IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010745 


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 all awards and decorations to include the Purple Heart (PH) he received be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states all of his medals and awards are not listed on his
DD Form 214.  He claims he received the PH while on active duty but it is also not listed on his DD Form 214. 

3.  The applicant provides his DD Form 214 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’s record shows he was inducted into the Army of the United States on 3 February 1971 and he was trained in and awarded military occupational specialty (MOS) 13E (Field Artillery Operations).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows no overseas service in item 31 (Foreign Service).  Item 33 (Appointments and Reductions) shows he was promoted to specialist five (SP5)/E-5 on 
21 September 1971, and this is the highest rank he attained while serving on active duty.  Item 33 is void of any indication he was ever reduced for cause during his active duty tenure.  

4.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows after he completed advanced individual training at Fort Sill, Oklahoma, he was assigned to Fort Carson, Colorado, on 10 December 1971.  It further shows he served there until he was separated from the military on 2 February 1973.  Item 38 also shows he received “excellent” conduct and efficiency ratings during his entire period of service.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank; and the list of awards in item 41 (Awards and Decorations) does not include the PH.  Item 41 shows the applicant earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

6.  The applicant’s record contains Headquarters, 4th Infantry Division (Mechanized) General Orders Number 43, dated 6 February 1973.  These orders awarded the applicant the Army Commendation Medal for meritorious service during the period 13 December 1971 through 2 February 1973.  His record is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

7.  On 2 February 1973, the applicant was honorably released from active duty after completing 2 years of active duty service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the NDSM and Expert Marksmanship Qualification Badge with Rifle Bar.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on the PH.  It states it is awarded to members who are wounded in action.  It further states that in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of the medical treatment must have been made a matter of official record. 

9.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM 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.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 
22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that all awards earned were not included on 
his DD Form 214 has been carefully considered and found to have merit.  The evidence of record confirms the applicant was awarded the ARCOM for meritorious service during the period 13 December 1971 through 2 February 1973, and that this award was authorized and announced in officials orders.  As a result, it would be appropriate to add this award to item 24 of his DD Form 214.  

2.  The evidence of record also confirms the applicant received “excellent” conduct and efficiency ratings at all of his active duty assignments.  Further, his record is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the AGCM.  Therefore, it would also be appropriate to award the applicant the AGCM for his qualifying period of honorable service from 3 February 1971 through 2 February 1973, and to add this award to his record and DD Form 214. 

3.  The applicant’s contention that he received the PH was also carefully considered.  However, the evidence is not sufficient to grant this portion of the requested relief.  By regulation, in order to support award of the PH there must be evidence confirming the member was wounded as a result of enemy action, the wound for which the award is being made must have required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.  

4.  The applicant’s record fails to show he ever served in a combat area or that he was ever wounded as a result of enemy action, as evidenced by item 31 and item 40 of his DA Form 20.  Absent any evidence to support the applicant’s assertion that he received the PH or that shows he was wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

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.  awarding him the AGCM for his period of qualifying honorable service from 
3 February 1971 through 2 February 1973, 

   b.  adding the Army Commendation Medal and AGCM to his record and item 24 of his DD Form 214; and
   
   c.  issuing him a document that includes the above corrections.  

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 adding the PH to his record and DD Form 214.  



      __________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)                                         AR20100010745



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ABCMR Record of Proceedings (cont)                                         AR20100010745



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