IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011487 


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 award of an additional Purple Heart and the Bronze Star Medal.

2.  The applicant states, in effect, that he did not receive the second of three Purple Hearts or the Bronze Star Medal.  He contends that he received burns on the fingers of his right hand when he threw burning C-4 explosives out of his armored personnel carrier.  He was medically evacuated.  His commander told him he was recommended for award of the Bronze Star Medal and Purple Heart.

3.  The applicant provides, in support of his application, copies of 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.  Evidence of record and background information:

	a.  On 29 August 1967, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11C (Infantryman Indirect Fire Crewman).

	b.  On 22 February 1968, the applicant was assigned to B Company, 4th Battalion (Mechanized), 23rd Infantry Regiment, 25th Infantry Division, located in the Republic of Vietnam.

	c.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted 
Qualification Record) shows that on 20 November 1968 he sustained a laceration of his right leg on 7 February 1969.

	d.  On 1 April 1969, he returned to the United States.
	
	e.  On  7 April 1969, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of sergeant, pay grade E-5, and had completed 
1 year, 7 months, and 9 days of creditable active duty service.

	f.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Commendation Medal, Purple Heart with 1st Oak Leaf Cluster, and the Combat Infantryman Badge.

	g.  The Vietnam Casualty Roster lists the applicant as wounded in action on 
7 February 1969.
		
3.  Available award orders:

	a.  General Orders Number 3768, 25th Infantry Division, dated 23 May 1968, awarded the Purple Heart for wounds received on 28 March 1968.

	b.  General Orders Number 1428, 25th Infantry Division, dated 
10 February 1969, awarded the Purple Heart for wounds received on 7 February 1969.

4.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to reveal any orders awarding the applicant a third Purple Heart or the Bronze Star Medal.  ADCARS is 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.

5.  References and relevant information:

	a.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

	b.  Army Regulation 600-8-22 also states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged n military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	c.  Title 10 of the U.S. Code, section 1130 (10 USC 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.

	d.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  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.  The applicant contends that his DD Form 214 should be corrected to show award of a third Purple Heart and the Bronze Star Medal.

2.  The available general orders show the applicant was awarded two Purple Hearts.  However, no general orders are available showing that he was awarded either a third Purple Heart or the Bronze Star Medal.

3.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects his right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      __________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)                                         AR20100011487





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011487



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1