IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027415 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of two Purple Hearts and the Silver Star.

2.  He states he:

* had 4 stitches put in his left hand because of combat
* had his mustache, eyebrows, and face burned to a "crispy cream" while in Vietnam
* earned the Silver Star for bringing relief to ten trucks in a no-man zone six miles away from the landing zone
* and the first sergeant were shot at by a sniper 

3.  He provides no additional documents.

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 records show he was inducted into the Army of the United States on 5 April 1967 and served until he was transferred to the U.S. Army Reserve Control Group (Annual Training) on 10 February 1969 after serving honorably for 1 year, 10 months, and 6 days.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Purple Heart or the Silver Star.  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) he served in Vietnam from 11 February 1968 to 10 February 1969;

   b.  item 38 (Record of Assignments) he was assigned to C Battery, 3rd Battalion, 16th Artillery Regiment from 18 February 1968 to 7 February 1969;

c.  Item 40 (Wounds) contains no entry; and 

d.  Item 41 (Awards and Decorations) does not show award of the Purple Heart or Silver Star.

4.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the U.S. Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders on file for the applicant awarding him the Purple Heart(s).  

5.  There are no orders in the applicant's records that show he was awarded the Purple Heart and his name is not listed on the Vietnam casualty roster.  

6.  There are also no medical records in his Official Military Personnel File that show he was wounded due to hostile action in Vietnam.

7.  Army Regulation 600-8-22 (Military Awards) 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.
8.  Army Regulation 600-8-22 provides, in pertinent part, that 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.

9.  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.

10.  The 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 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.  The regulation governing award of Purple Heart indicates the wound for which the award is being made must have been 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 medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

2.  Regrettably, there is no evidence in the applicant's record and he provided none to show he was wounded as a result of hostile action and he meets the above criteria.  Therefore, there is insufficient evidence in which to base award of the Purple Heart or correction of his DD Form 214 to show this award.

3.  There is no evidence in the available record nor did the applicant submit any evidence that shows he is entitled to award of the Silver Star.  In the absence of such evidence, there is no basis on which to add it to his DD Form 214.
4.  Additionally, a review of ADCARS failed to reveal Silver Star orders in the applicant's name.

5.  While the available evidence is insufficient for awarding a Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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)                                         AR20100027415



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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