IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100013199 


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 that his records be corrected to show award of two Purple Hearts and two Bronze Star Medals.

2.  The applicant states, in effect, he was in possession of the medals, but he no longer has them.  He wants new medals and to have them added to his records.  

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty), Report of Medical Examination [separation], DA Form 3349 (Medical Condition - Physical Profile Record), one page of his DA Form 20 (Enlisted Qualification Record), and a Standard Form 502 (Narrative Summary).

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 service medical and dental records are believed to be on loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army on 30 October 1967, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

4.  He served in Vietnam from 11 April through 29 October 1968.

5.  The applicant's DA Form 20 provides the following information, which includes several conflicting entries:

	a.  block 38 (Record of assignments) shows the applicant was:

	b.  a patient from 10 October 1968 through 14 January 1969;

	c.  absent without leave from 2 May 1969 through 16 March 1970;

	d.  an instructor from 17 March through 14 September 1970; and

	e.  transferred to the U.S. Army Reserve (USAR) control group (Annual Training) on 15 September 1970;

	f.  block 41 (Awards) shows the National Defense Service Medal, Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar;

	g.  block 44 (Time Lost) shows he had lost time due to confinement from      12 May 1969 through 18 March 1970; and

6.  His DD Form 214 shows he was honorably released from active duty in the rank of specialist four on 15 September 1970.  He was awarded the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

7.  The Report of Medical Examination provided by the applicant indicates he reported receiving treatment for a shrapnel wound in Vietnam.  The attending physician made no note of such a wound. 


8.  A DA Form 3349, dated 5 December 1968, shows the applicant was afforded a temporary profile due to an abdominal abscess secondary to trauma. 

9.  The applicant's record contains no orders or recommendations for awards except for his marksmanship qualification badges.

10.  A review of the Vietnam Casualty List failed to make any reference to the applicant.

11.  A 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 orders for any awards.

12.  Army Regulation 600-8-22 (Military Awards) states 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.

13.  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.

14.  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 his record should be corrected to show two Purple Hearts and two Bronze Star Medals.  He contends he was in possession of the medals, but he no longer has them.  He wants new medals and to have them added to his records.  

2.  The applicant's record shows he was medically evacuated from Vietnam on or about 10 October 1968; the reason for his evacuation is not documented in the available records.

3.  On the separation examination he reported receiving treatment for a shrapnel wound in Vietnam; however, the attending physician did not report any findings related to this wound.

4.  The available evidence is insufficient to show the applicant received any wounds as a result of hostile action.  Therefore, correcting his records to show award of the Purple Heart is not appropriate at this time.

5.  The applicant was authorized two bronze service stars for wear on his Vietnam Service Medal; however, he has not provided and the record does not contain any evidence that the applicant was recommended for or awarded the Bronze Star Medal.

6.  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 Bronze Star Medal, by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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)                                         AR20100013199



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013199



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1