IN THE CASE OF:	  

		BOARD DATE:	    7 April 2011

		DOCKET NUMBER:  AR20100021881 


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 award of the Air Medal, Bronze Star Medal, and Purple Heart.

2.  The applicant states, in effect, the documentation provided supports his entitlement the Air Medal, Bronze Star Medal, and Purple Heart.

3.  The applicant provides copies of 10 pages of DA Forms 1594 (Daily Staff Journal or Duty Officers Log) for the 1st Battalion, 52nd Infantry Regiment [with notes by the applicant], a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a DD Form 215 (Correction to DD Form 214), two profiles from an online unit history site, a letter from a Department of Veterans Affairs (VA) counselor, and a letter from a fellow Soldier.

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.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-15 states the ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The application may be returned without action if no new evidence is submitted with a request for reconsideration or if reconsideration is not requested within 1 year after the ABCMR's decision.

3.  The applicant was previously denied award of the Air Medal on 31 July 2003.  The applicant's current request contains no evidence to show the previous denial was in error; therefore, this issue will not be further addressed.

4.  The applicant's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.

5.  The applicant was inducted into the Army of the United States and entered active duty on 8 January 1969.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 9 June 1969 to 8 June 1970 in Company B, 1st Battalion, 52nd Infantry Regiment.

6.  The applicant was honorably released from active duty on 7 January 1971 as a specialist four/E-4.  His DD Form 214, as amended, lists his awards as the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar.

7.  None of the DA Form 1594 excerpts for the 1st Battalion, 52nd Infantry Regiment, actions on 4 August 1969, 13 August 1969, 20-21 December 1969, or 1 February 1970 include the applicant's name as either a participant or as one of those wounded.

8.  The letter from a fellow Soldier states the applicant was knocked unconscious during a 1 February 1970 attack on their unit.

9.  The VA counseling therapist states the applicant is in receipt of an 80-percent disability rating for post-traumatic stress disorder and a 20-percent rating for individual unemployability.  The therapist states the applicant was engaged in the same actions that resulted in others being awarded the Purple Heart and Bronze Star Medal.

10.  The record does not contain any evidence the applicant was considered for or awarded the Bronze Star Medal or Purple Heart.

11.  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 any awards.

12.  A review of the Vietnam casualty list failed to locate any reference to the applicant.

13.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and similar devices awarded in recognition of accomplishments.

	a.  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.

	b.  The Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the United States is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 15-185, paragraph 2-9, states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that the documentation provided supports his entitlement the Air Medal, Bronze Star Medal, and Purple Heart.

2.  The record contains no evidence to support the applicant's contention that he received a wound as the result of hostile action for which he received medical treatment.  Neither the VA counselor nor the fellow Soldier even mentions that he was treated.  Without a record of treatment for a wound sustained as the result of enemy action, entitlement to the Purple Heart cannot be established.

3.  The statements of individuals are inadequate as the sole basis for an award of the Purple Heart because they do not fulfill the regulatory requirement that there must be a record of medical treatment.

4.  The record does not contain and the applicant has not provided any evidence he was considered for or awarded the Bronze Star Medal or Purple Heart.

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 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)                                         AR20100021881



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ABCMR Record of Proceedings (cont)                                         AR20100021881



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