IN THE CASE OF:	  

		BOARD DATE:	    26 May 2011

		DOCKET NUMBER:  AR20100027073 


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 following corrections to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge):

	a.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) include the:

* Combat Infantryman Badge with two stars
* Silver Star
* Purple Heart with First Oak Leaf Cluster

	b.  Item 30 (Remarks) - change service in the Republic of Vietnam entry to read January 1968 to May 1970.

2.  The applicant states he was sent to the Republic of Vietnam in January of 1968 and released in May 1970.  He served in the 9th Infantry Recon 
3rd Battalion of the 47th Infantry except for his last four months and 14 days when he was assigned to Company B, 720th Military Police (MP) Battalion.

3.  The applicant provides:

* DD Form 214
* a letter, dated 19 April 2006, from the Department of Veterans Affairs (VA)
* a list of his disabilities


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.  He enlisted in the Regular Army on 21 August 1967 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  He served in the Republic of Vietnam from 6 January 1968 to 21 March 1970. He was assigned to:

* 3rd Battalion, 47th Infantry, 9th Infantry Division from 18 January to 8 July 1968
* Company D, 87th Infantry, 9th Infantry Division from 9 July 1968 to 
29 September 1969
* 95th MP Battalion from 30 September to 21 October 1969
* Company B, 720th MP Battalion from 22 October 1969 to 21 March 1970

4.  Headquarters, 9th Infantry Division General Orders Number 2703, dated 
24 April 1968 awarded him the Purple Heart for wounds received on 17 April 1968.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he received shrapnel wounds to his chin and neck on 17 April 1969.  

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows he was awarded the Purple Heart.  The entry cites General Order 2703, Headquarters, 9th Infantry Division as the authority.

7.  On 23 March 1970, he was released from active duty at the U.S. Army Personnel Center in Oakland, CA.  He completed 2 years, 7 months, and 3 days of active service.  Item 24 of his DD Form 214 shows he was awarded or is authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Purple Heart

8.  Item 30 of his DD Form 214 contains the entry that indicates his service in the Republic of Vietnam was from 6 January 1968 to 22 March 1970.
 
9.  There are no orders or recommendations in his Military Personnel Records Jacket (MPRJ) for the awards of the Silver Star or a second Purple Heart.

10.  He is listed on the Vietnam casualty listing.  The listing shows his casualty status as hostile, wounded in action, not serious, not hospitalized.  The listing reports the date of casualty as 17 April 1968.  The listing does not list him for any wounds on 17 April 1969.

11.  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 the Silver Star or a second Purple Heart for the applicant.

12.  Army Regulation 600-8-22 (Military Awards) states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  Army Regulation 600-8-22 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.

14.  Army Regulation 600-200, chapter 9 of the version in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the 
DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

15.  Army Regulation 600-8-22 states a separate award of the Combat Infantryman Badge has been authorized for qualified Soldiers in any of four conflicts.  One of the conflicts listed is the Vietnam Conflict which includes service in Vietnam  from 2 March 1961 to 28 March 1973.  Subsequent awards of the Combat Infantryman Badge are not authorized for the same qualifying period. It is recognized by one award only regardless of whether a Soldier had served one or multiple tours in same qualifying period.  Second and third awards of the Combat Infantryman Badge are indicated by superimposing 1 and 2 stars respectively, centered at the top of the badge between the points of the oak wreath.  

16.  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.

17.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100.  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.  There is no evidence he was recommended for the Silver Star.  There are no orders listed on ADCARS or in his MPRJ awarding him the Silver Star.  Therefore, there is insufficient evidence on which to add the Silver Star to his 
DD Form 214.

2.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects his right to pursue his claim for the Silver 
Star, if in fact he does not have orders awarding it to him, by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  Item 40 of his DA Form 20 indicates he received shrapnel wounds to his chin and neck on 17 April 1969.  The evidence shows:

* item 41 of his DA Form 20 cites 9th Infantry Division General Order Number 2703 for awarding the Purple Heart
* 9th Infantry Division General Order Number 2703 awards him the Purple Heart for wounds received on 17 April 1968
* the Vietnam casualty listing lists him as being wounded on 17 April 1968

4.  The preponderance of evidence in this case indicates he was wounded once, on 17 April 1968.  It appears the date of the entry in item 40 of his DA Form 20 contains a typographical error in the year of his injury.  Without additional evidence to show he was wounded a second time, there is insufficient evidence on which to base adding a second award of the Purple Heart to his DD Form 214.

5.  His entire period of service was during the Vietnam Conflict.  It was not possible during this period to earn more than one award of the Combat Infantryman Badge.  Therefore, he is not entitled to a star on his Combat Infantryman Badge.

6.  The exact date of his departure from the Republic of Vietnam is unknown.  However, his DD Form 214 shows he was released from active duty in Oakland, CA on 23 March 1970.  The evidence shows he was not in the Republic of Vietnam until May 1970.  Therefore, there is no basis to change the entry showing his service in the Republic of Vietnam in item 30 of his DD Form 214.

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)                                         AR20100027073



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ABCMR Record of Proceedings (cont)                                         AR20100027073



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