IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100013731 


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 the Purple Heart, Bronze Star Medal, and unit citations.  

2.  He states:

* No documentation was submitted by the medic who treated the wounds he sustained on Hill 474 located in the Republic of Vietnam (RVN) in 1970
* He seems to be the only person who did not receive the Bronze Star Medal and two unit citations

3.  He provides a self-authored statement and two eyewitness statements 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 enlisted in the Regular Army on 29 January 1968.  

3.  He arrived in the RVN on 9 April 1969 and was assigned to Company C, 3rd Battalion, 506th Infantry on 23 April 1969.

4.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart, Bronze Star Medal, or any unit awards.  

5.  His service record does not contain any orders which show he was awarded the Purple Heart.  Item 40 (Wounds) on his DA Form 20 does not list any wounds as a result of hostile action.  His name is also not included on the Vietnam casualty roster.  

6.  His service record does not contain orders for award of the Bronze Star Medal.

7.  He departed Vietnam on 30 March 1970 after participating in the Tet 69/Counteroffensive, Vietnam Summer - Fall 1969, and Vietnam 
Winter - Spring 1970 campaigns.  

8.  He was honorably released from active duty on 4 August 1971.  

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the following awards:

* Army Commendation Medal
* National Defense Service Medal
* RVN Campaign Medal with Device (1960)
* "Vietnam Campaign Medal"
* Combat Infantryman Badge
* Parachutist Badge
* Two Overseas Service Bars
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This pamphlet shows the 3rd Battalion, 506th Infantry, was cited for the following awards:

* RVN Gallantry Cross with Palm Unit Citation for the period 19 July 1968 to 14 May 1969 by Headquarters, Department of the Army General Orders (DAGO) Number 43, dated 1970
* RVN Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 to May 1970 by DAGO Number 48, dated 1971

11.  He provided a self-authored statement in support of his claim and stated:

* He was assigned to Company C, 3nd Battalion, 506th Infantry, 101st Airborne Division in Vietnam sometime in January or February 1970 and was detailed to Hill 474
* A North Vietnamese Army (NVA) soldier fired at him, he took cover behind a boulder, and he felt a sting on his left hand and his right side
* A medic treated his wounds and told him in order to get his medal he would have to go back in the rear to the hospital to be treated
* He refused to go to the rear and leave his men while engaged with the enemy
* He did not return to the rear until it was time for him to go home
* He believes he has earned the Purple Heart and the Bronze Star Medal

12.  The applicant provided an eyewitness statement from a fellow veteran who was assigned to his unit in Vietnam who stated:

* The applicant led a squad from their platoon to a huge rock/boulder on Hill 474
* An NVA soldier fired an AK-47 at the applicant and he could see the bullets hitting the top of the rock directly in front of the applicant
* He could clearly see blood on the applicant’s left wrist area
* They were ordered back to their platoon where the applicant received medical attention but he opted to stay in the field
* He is 100 percent sure the wound on the applicant’s left hand was from the first burst of AK-47 fire at the rock pile

13.  The applicant provided a second eyewitness statement from a fellow veteran who was also assigned to his unit in Vietnam who stated:

* The applicant's hand and side were wounded by NVA soldiers carrying AK-47s
* A medic treated the applicant’s wounds in the field and he did not go back to rear for additional treatment 

14.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart and the Bronze Star Medal pertaining to the applicant.

15.  Army Regulation 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound sustained 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.  

16.  Army Regulation 600-8-22 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.

17.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.

18.  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 timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

19.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record does not contain and he has not provided any evidence or medical documents which verify he was injured as a result of hostile action in Vietnam.

2.  His service record does not contain orders which authorized him the award of the Purple Heart and his name is not listed on the Vietnam casualty roster.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, the wound must have required treatment by medical personnel, and the treatment must have been made a matter of official record.  

3.  In the absence of any corroborating evidence which shows he was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  The eyewitness statements attesting that the applicant sustained a wound in his hand were noted.  However, these statements alone are not sufficient to meet the regulatory burden of proof necessary to support award of the Purple Heart in this case.

5.  While the available evidence is insufficient for awarding him 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 Title 10, U.S. Code, section 1130.

6.  He was assigned to the 3rd Battalion, 506th Infantry during a period it was cited for award of the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show these foreign unit awards.

7.  Evidence shows he completed a qualifying period of service for award of the Vietnam Service Medal, but it does not appear on his DD Form 214.  However, his DD Form 214 currently reflects award of the RVN Campaign Medal with Device (1960) and the Vietnam Campaign Medal, which are the same and appears to be the result of a typographical error.  Evidence shows he participated in three campaigns during the Vietnam War.  Therefore, his DD Form 214 should be corrected to show award of the Vietnam Service Medal with three bronze service stars.

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 Campaign Medal;

	b.  adding to item 24 of his DD Form 214 the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and  Vietnam Service Medal with three bronze service stars.

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 and the Bronze Star Medal.  



      _______ _   _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)                                         AR20100013731





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ABCMR Record of Proceedings (cont)                                         AR20100013731



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