IN THE CASE OF:	  

		BOARD DATE:	      6 January 2011

		DOCKET NUMBER:  AR20100018069


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 the Purple Heart (PH) and Air Medal (AM) be listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that the PH and AM are not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides:

* a copy of his DD Form 214
* National Personnel Records Center (NPRC) Letter

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 military records show he was inducted into the Army of the United States and entered active duty on 20 June 1967.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 22 November 1967 to 20 November 1968. It also shows he was assigned to Company C, 1st Battalion, 22nd Infantry Regiment and performed the duties of a rifleman during his RVN tour.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 shows he sustained a fragment gunshot wound to his buttocks on 29 April 1968.  Item 41 (Awards and Decorations) does not include the PH or AM.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains Headquarters, 1st Air Calvary Division, General Orders Number 10373, dated 13 August 1968.  It posthumously announced the AM to a Soldier other than the applicant, with a different name and social security number; however the applicant’s service number was used on this order.

6.  There are no orders or any other documents on file in the applicant's MPRJ to show he was ever recommended for or awarded the PH or AM.

7.  On 19 June 1969, the applicant was honorably released from active duty (REFRAD) in the rank/grade of sergeant (SGT/E-5).  The DD Form 214 he was issued upon his REFRAD shows he completed 2 years of total active service.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty service:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Combat Infantryman Badge (CIB)
* RVN Campaign Medal with Device (1960)
* two Overseas Bars
* Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar
* Marksman Marksmanship Qualification Badge with M-16 Rifle Bar

9.  During the processing of this case, a member of the Board staff reviewed the Vietnam Casualty Listing.  This applicant’s name is included on this list and it shows he was wounded on 29 April 1968.

10.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to reveal any orders awarding the applicant the AM.   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.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states that the PH is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.

12.  Paragraph 2-13 of the awards regulation 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.  A silver service star will be used in lieu of five bronze service stars.  Appendix B shows that during his service in Vietnam, the applicant participated in the following five campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* TET Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July - 1 November 1968)
* Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969)

13.  Paragraph 3-16 of the awards regulation states the AM is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

14.  Title 10, 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.

15.  The 10 USC 1130 award 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 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.

16.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant's tenure of assignment in the RVN, his unit (Company C, 1st Battalion, 22nd Infantry Regiment) earned the following unit awards:

* Valorous Unit Award (VUA) (30 January - 13 February 1968) 
* RVN Gallantry Cross with Palm Unit Citation (1 August 1965 - 16 April 1971)
* RVN Civil Actions Honor Medal First Class Unit Citation (1 October 1966 -31 October 1969)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the PH and AM.

2.  The evidence of record confirms the applicant was wounded in action on 29 April 1968, when he sustained fragment gunshot wounds to his buttocks as evidenced by the entry contained on his DA Form 20.  In addition, the applicant’s name is included on the Vietnam Casualty Listing, the official DA list of RVN battle casualties, which corroborates his claim.  As a result, the regulatory burden of proof necessary to support award of the PH has been met in this case. Therefore, it would be appropriate to award the applicant the PH and to add it to his DD Form 214 at this time.

3.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is entitled to the VUA, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Action Honor Medal First Class Unit Citation and one silver service star for wear on his already-awarded VSM.  Therefore, it would be appropriate to add these awards to his DD Form 214 at this time.

4.  The available evidence shows the applicant’s service number was mistakenly listed on another Soldier’s AM order; however if fails to include any evidence to show that he was ever recommended for or awarded the AM.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

5.  While the available evidence is insufficient to correct his records to show award of the AM, this in no way affects the applicant’s right to pursue his claim for the Air Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 Purple Heart for wounds received on 29 April 1968;
   
b. amending item 24 of his DD Form 214 by adding the Purple Heart,
Valorous Unit Award, Vietnam Service Medal with one silver service star, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal; and

c. providing the applicant with a correction to his DD Form 214 that reflects these changes.
   
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 the Air 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)                                         AR20100022642



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ABCMR Record of Proceedings (cont)                                         AR20100018069



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