IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100018610 


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 an additional award of the Purple Heart and the Air Medal with "V" Device and five oak leaf clusters for extra hours flown.

2.  He states:

* his DD Form 214 only shows one Purple Heart, but there should be a second award
* he was assigned to 2nd Battalion, 8th Mechanized Infantry Regiment, 4th Infantry Division, from August 1967 to March 1968 when he transferred to the 4th Aviation Battalion
* he received a Purple Heart for an injury near Dak To in the Republic of Vietnam (RVN) while on patrol in November 1967
* he received shrapnel wounds during an enemy attack in January 1968
* his DD Form 214 does not show an Air Medal with "V" Device and five oak leaf clusters 
* he had a total of over 600 hours flight time which should be an oak leaf cluster for each 100 hours over the initial 100 hours
* he was awarded the Air Medal with "V" Device for helping a pilot who was injured by enemy machine gun fire 

3.  He provides the following documents in support of his application:



* DD Form 214
* citation for award of the Air Medal
* newspaper article

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 was inducted into the Army of the United States on 21 November 1966.  His highest grade attained was specialist four (SP4).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 7 August 1967 to 5 August 1968.  He was assigned to Headquarters and Headquarters Company, 2nd Battalion (Mechanized), 8th Infantry Regiment, 4th Infantry Division, and to Company A, 4th Aviation Battalion, 4th Infantry Division, during his tour in the RVN.

4.  Headquarters, 4th Infantry Division, General Orders Number 2036, dated 20 May 1968, show he was awarded the Air Medal for meritorious service while participating in aerial flight during the period 2 April 1968 to 21 April 1968.

5.  Item 41 (Awards and Decorations) of his DA Form 20 shows he was awarded the Purple Heart by Headquarters, 4th Infantry Division, Special Orders Number 101, dated 23 May 1968.

6.  His name is not listed on the Vietnam casualty roster and no entries are listed in item 40 (Wounds) of his DA Form 20.

7.  His DA Form 20 shows he received "excellent" conduct and efficiency ratings and one rating of "unknown" during his tenure on active duty.  His service record contains one nonjudicial punishment under Article 15, Uniform Code of Military Justice, dated 5 July 1967, for wrongfully appearing at a company formation in an unclean uniform.  His service record does not contain a commander's disqualification for the first award of the Army Good Conduct Medal.

8.  His service record does not contain any flight records or orders for award of the Air Medal with "V" Device and five oak leaf clusters.

9.  He was released from active duty on 6 August 1968 in the rank of SP4.  He completed 1 year, 8 months, and 16 days of active military service with no time lost.

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

* National Defense Service Medal
* RVN Campaign Medal
* Vietnam Service Medal
* two overseas service bars
* Purple Heart
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Pistol Bar
* Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60)

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the unit(s) to which he was assigned was cited for award of the:

* Meritorious Unit Commendation for the period 1 December 1967 to 31 May 1968 by Department of the Army General Orders (DAGO) Number 42, dated 1968
* RVN Gallantry Cross with Palm Unit Citation for the period October 1966 to 28 July 1969 by DAGO Number 3, dated 1970
* RVN Civil Actions Honor Medal First Class Unit Citation for the period 1 October 1966 to 31 October 1969 by DAGO Number 53, dated 1970

12.  He provided a copy of a newspaper article from the Courier-Journal in Louisville, KY, which reports he was awarded the Air Medal for combat aerial support of ground operations in the RVN.

13.  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 a second award of the Purple Heart or Air Medal with "V" Device and five oak leaf clusters pertaining to the applicant.

14.  Army Regulation 600-8-22 (Military Awards) states an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

15.  Army Regulation 600-8-22 states Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

16.  Army Regulation 600-8-22 contains guidance on the Vietnam Service Medal.  It states 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, participation credit was awarded for the following four campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967-29 January 1968)
* Tet Counteroffensive (30 January 1968-1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April 1968-30 June 1968)
* Vietnam Counteroffensive Phase V (1 July 1968-1 November 1968)

17.  Army Regulation 672-5-1 (Military Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

18.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 the 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 DD Form 214 currently reflects one award of the Purple Heart.

2.  His service record is void of evidence and he has not provided sufficient evidence which shows he sustained shrapnel wounds a second time in January 1968 in the RVN.  Therefore, he is not eligible for a second award of the Purple Heart.

3.  General orders show he was awarded the Air Medal on 20 May 1968; therefore, this award should be added to his DD Form 214.  However, his service record is void of flight records and orders which show he was awarded the Air Medal with "V" Device and five oak leaf clusters.  Therefore, there is insufficient evidence to award him the Air Medal with "V" Device and five oak leaf clusters.

4.  While the available evidence is insufficient for awarding him the Air Medal with "V" Device and five oak leaf clusters, this in no way affects his right to pursue his claim for the Air Medal with "V" Device and five oak leaf clusters by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

5.  He was assigned to units in the RVN during periods they were cited for award of the Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

6.  The evidence of record does not show he was disqualified from receiving the first award of the Army Good Conduct Medal for the period 21 November 1966 through 6 August 1968.  Although he received one Article 15 and one rating of "unknown," these are not disqualifying factors for receiving the first award of the Army Good Conduct Medal.  His service record shows he was promoted to SP4 and received "excellent" conduct and efficiency ratings during this period of service.  Therefore, it appears he has met the requirements for the first award of the Army Good Conduct Medal for the period 21 November 1966 through 6 August 1968 and correction of his records to show this award.

7.  His DD Form 214 currently reflects the Vietnam Service Medal.  Additionally, he received credit for participation in four campaigns during the Vietnam War.  Therefore, his DD Form 214 should be amended to reflect four bronze service stars for wear on his already-awarded Vietnam Service Medal.

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.  awarding him the Army Good Conduct Medal (1st Award) for the period 21 November 1966 through 6 August 1968;

	b.  deleting the Vietnam Service Medal from item 24 of his DD Form 214; and

	c.  adding the Air Medal, Army Good Conduct Medal (1st Award), Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and Vietnam Service Medal with four bronze service stars to item 24 of his DD Form 214.

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 an additional award of the Purple Heart and the Air Medal with "V" Device and five oak leaf clusters.



      ___________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)                                         AR20100018610



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ABCMR Record of Proceedings (cont)                                         AR20100018610



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