IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013073 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the:

* Purple Heart
* Combat Action Badge
* Red bar or red ribbon [properly known as the Meritorious Unit Commendation] with oak leaf cluster
* Presidential Unit Citation

2.  He states, in effect, he is entitled to award of the Purple Heart as a result of the injuries he sustained to his left foot and ankle during an indirect fire attack while serving in the Republic of Vietnam.  He further states he was awarded the Bronze Star Medal for activity in combat, but never the Purple Heart.  He further states that due to the confusion of combat, his unit never received a combat commendation.

3.  He provides copies of:

* his DD Form 214
* documents extracted from a claim he filed with the Department of Veterans Affairs (DVA)
* two newspaper articles
* 
two photographs extracted from newspapers
* a magazine article
* three photographs

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.  His record shows he was inducted into the Army of the United States on 22 January 1969 and he held military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  On 25 August 1970, he was released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  His DA Form 20 (Enlisted Qualification Record) contains the following pertinent information:

	a.  Item 38 (Record of Assignments) shows that during his tour of duty in the Republic of Vietnam, he was assigned to the following units for the periods indicated:

* 20 June 1969 through 5 October 1969 with Battery C, 6th Battalion,
27th Artillery Regiment, in duty MOS 13A as a Cannoneer
* 6 October 1969 through 1 April 1970 with Battery B, 6th Battalion,
27th Artillery Regiment, in duty MOS 13A as a Cannoneer
* 2 April 1970 through 22 August 1970 with Battery B, 6th Battalion,
27th Artillery Regiment, in duty MOS 13A as a Motorized Carrier Driver

	b.  Item 38 also shows he received "excellent" conduct and efficiency ratings at each of his duty assignments.

	c.  Item 40 (Wounds) is blank.
4.  Item 41 (Awards and Decorations) of his DA Form 20 shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Overseas Service Bars (2 awards)
* Army Good Conduct Medal (1st Award) by General Order Number 764, Headquarters, II Field First, Vietnam, dated 7 July 1970
* Army Commendation Medal, by General Order Number 764, same headquarters, dated 7 July 1970
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
(M-16)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

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

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)]
* Army Commendation Medal

6.  There is no evidence in the available record and he has not provided any evidence showing he:

* was awarded or recommended for award of the Purple Heart or the Combat Action Badge
* sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action

7.  His name does not appear on the Vietnam casualty roster.

8.  He provides copies of:

	a.  documents extracted from a claim he filed with the DVA showing, in pertinent part, he was granted service-connection for residual injury to his left 

ankle at a 10 percent (%) disability rating percentage.  He has also requested the DVA to evaluate him for service-connected Post Traumatic Stress Disorder and Type II Diabetes.  In support of his claim, he provided an extract from an Operational Report submitted by his unit for the period ending 31 January 1970.  This report shows the unit participated in numerous operations and sustained two indirect fire rocket and mortar attacks on 20 April 1970.  The report did not mention the applicant by name, but clearly stated Battery B did not sustain any damage or casualties as a result of either attack.

	b.  an undated article entitled "Citation" from an unidentified newspaper which shows 6th Battalion, 27th Artillery had submitted a recommendation for the battalion to be awarded a Meritorious Unit Commendation which, if approved, would materialize as a red bar with oak leaf cluster.  The basis of the recommendation was the battalion's combat activities during the period 1 February through 31 August 1969.  The article also noted that the unit had previously been awarded a Meritorious Unit Commendation for actions during the period January through October 1966.  At the time, members of the battalion were allowed to wear the red bar for the 1966 citation and a blue Presidential Unit Citation granted in 1967.  It stated the blue bar could only be worn while assigned to the battalion.

	c.  an undated article entitled "U.S. air retaliation near Cambodia kills 73 enemy" from an unidentified newspaper which details the U.S. military's massive air and artillery retaliation in response to a North Vietnamese attack on U.S. helicopters northeast of Saigon.  This article did not mention the applicant or his unit by name.

	d.  an undated photograph extracted from an unidentified newspaper which shows a self-propelled 175 millimeter howitzer being transported in a convoy in the Republic of Vietnam.

	e.  an undated photograph extracted from an unidentified newspaper which shows two Soldiers moving a box of ammunition from a burning airstrip in the Song Be area during a mortar attack by Viet Cong.

	f.  an article entitled "Artillery on the Move" extracted from the June 1970 edition of a magazine entitled "The Hurricane."  This article essentially described the manner in which large self-propelled artillery vehicles travelled from one point to another on the ground because they were too heavy to be air-lifted by helicopters.  The applicant's specific unit was mentioned in the article, but there was no mention of any damage or casualties inflicted by the enemy.  He also 

provides a photograph from the back cover of the magazine which shows five Soldiers firing a piece of artillery.  He handwrote the names/nicknames of the Soldiers (including himself) on the photograph.

	g.  three photographs of a piece of artillery with a broken muzzle, dated July 1970.

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a direct 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.

10.  Army Regulation 600-8-22 states the Meritorious Unit Commendation is awarded to units for exceptionally meritorious conduct in the performance of outstanding services for at least 6 continuous months during the period of military operations against an armed enemy occurring on or after 1 January 1944.  Units based in the continental United States are excluded from this award, as are other units outside the area of operations.

11.  Army Regulation 600-8-22 states the Presidential Unit Citation is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.

12.  Army Regulation 600-8-22, 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 four campaigns:

* 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)
* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971)

13.  Army Regulation 600-8-22 states award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows awards received by units serving in the Republic of Vietnam.  This pamphlet shows Department of the Army General Orders (DAGO) awarded the following recognition to the applicant's unit for achievements during his period of assignment:

* Valorous Unit Award for the period 1 May - 29 June 1970 by Department of the Army General Orders (DAGO) Number 43, dated 1972
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 21 February 1970 - 28 February 1971 by DAGO 42, dated 1972
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 14 September 1967 - 15 January 1971 by DAGO 51, dated 1971

15.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) states unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached to and present for duty with the unit for at least 30 consecutive days of the period cited.  This regulation also states an individual who was not present with a unit during the period cited for permanent wear of a unit award may be authorized temporary wear only for the duration of assignment to the unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show award of the Purple Heart, Meritorious Unit Commendation with oak leaf cluster, Presidential Unit Citation, and the Combat Action Badge was carefully considered.

2.  General orders awarded him the Army Good Conduct Medal (1st Award).  Therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  His records show he was awarded the Vietnam Service Medal.  The evidence shows he participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal and to correction of his DD Form 214 to show the bronze service stars.

4.  DAGO awarded the following recognition to the applicant's unit for achievement during his period of assignment.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards:

* the Valorous Unit Award
* the Republic of Vietnam Gallantry Cross with Palm Unit Citation
* the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

5.  Although he was authorized to temporarily wear the Meritorious Unit Commendation with one oak leaf cluster and the Presidential Unit Citation while assigned to his unit, there is no evidence showing his unit was awarded either award in recognition of actions during his period of assignment.  Therefore, he is not entitled to correction of his records to show authorization for permanent wear of these unit awards.

6.  His record is void of any orders or other documents and he has not provided any evidence indicating he was awarded the Purple Heart by proper authority while serving on active duty.  His name is also not on the Vietnam casualty roster.

7.  There is no evidence in the available record and the applicant has not provided sufficient evidence which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.  Accordingly, based on the foregoing there is insufficient evidence to award him the Purple Heart.

8.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.  Accordingly, he is not entitled to award of this badge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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; and

	b.  adding to item 24 of his DD Form 214 the:

* Army Good Conduct Medal (1st Award),
* Vietnam Service Medal with four bronze service stars
* Valorous Unit Award
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

2.  The Board further determined 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 showing award of the Purple Heart, Meritorious Unit Commendation with oak leaf cluster, Presidential Unit Citation, and the Combat Action Badge.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices 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)                                         AR20100013073



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013073



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1