IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100028054 


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 that his records be corrected to show award of a second Bronze Star Medal with "V" Device and a Purple Heart. 

2.  The applicant states he was wounded in the right wrist and forearm during a mortar attack in June 1970.  He was treated first at an aid station and then at the 3rd Field Hospital, Saigon, Vietnam.  The wound occurred at the same time he was treated for malaria and he is entitled to the Purple Heart.  He was awarded a second Bronze Star Medal with "V" Device.  The DD Form 214 he is providing shows the proper listing of his awards. 

3.  The applicant provides copies of a DD Form 214 (November 1972 edition), a personal statement, a statement from a former Soldier (relative), and two pages from his service medical records.

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 service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army on 20 March 1967, completed training, and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  He also completed basic airborne training in 1967.

4.  The applicant was discharged for immediate reenlistment on 27 July 1968.  The DD Form 214 prepared at this time lists his awards as the National Defense Service Medal, Vietnam Service Medal, and the Parachutist Badge.

5.  The applicant was discharged for immediate reenlistment on 25 December 1969.  The DD Form 214 prepared at this time lists his awards as the National Defense Service Medal, Air Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Expert Marksmanship Qualification Medal with Rifle Bar (M-14, M-16), Parachutist Badge, and a "BAM" [possibly a Basic Air Medal].

6.  The record contains orders for the following awards:  a Bronze Star Medal, for meritorious service from February 1970 through February 1971; an Air Medal, for meritorious achievement from 3 September 1968 through 25 September 1968; an Air Medal, for meritorious achievement from December 1969 through September 1970; the Expert Marksmanship Qualification Badge with Rifle Bar (M-14) in 1967; the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) in 1968 and 1971; and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) in 1969.

7.  The applicant was discharged, in pay grade E-2, on 24 April 1972 for unfitness - drug abuse with a general discharge.  The DD Form 214 issued at that time lists his awards as the Air Medal, Republic of Vietnam Campaign Medal with Device (1960-), Bronze Star Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  

8.  On 27 November 1979, in a class action suit, the United States District Court for the District of Columbia in ''Giles v. Secretary of the Army" (Civil Action No. 77-0904), ruled that former Army service members are entitled to an honorable discharge, if discharged before 1 January 1975 as a result of an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow up).

9.  On 28 November 1980, in accordance with the above court order, the applicant's discharge was upgraded to honorable.  The DD Form 214 issued as a result of the court-mandated upgrade shows the applicant was discharged in pay grade E-2, on 24 April 1972 for unfitness - drug abuse.  It lists his awards as the Air Medal, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, Expert Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal, National Defense Service Medal, Parachutist Badge, and the Combat Infantryman Badge.

10.  The applicant's DA Form 20 (Enlisted Qualification Record) provides the following:

	a.  award of MOS 13B (Field Artillery Crewman) with no secondary MOS shown;

	b.  was a patient at the Army Medical Command Long Binh, Vietnam from 20 March 1972 through 30 March 1972;

	c.  was assigned to the Medical Hold Company, Ft Knox, from 31 March 1972 through the date of his discharge, 24 April 1972;

	d.  he served in Vietnam during six campaign periods;

	e.  item 40 (Wounds) is blank;

	f.  his awards are listed as the National Defense Service Medal, Vietnam Service Medal, the Parachutist Badge, Air Medal, Republic of Vietnam Campaign Medal with Device (1960-), a "BAM," Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16); and

	g.  he was absent without leave (AWOL) a total of 48 days from 16 through 29 June 1971 and from 20 March 1972 - 23 April 1972.

11.  A former Soldier and relative of the applicant states the family was notified that the applicant received a wound to his wrist and a blood transfusion while serving in Vietnam in June 1970.

12.  Of the two medical documents provided by the applicant one is a clinical record cover sheet showing a diagnosis of malaria. the other is a laboratory slip requesting a check for malaria.

13.  A review of the Vietnam Casualty List failed to locate any reference to the applicant.

14.  The DD Form 214 provided by the applicant does not match any copies of the DD Forms 214 contained in his official service record.  It shows he was separated as a corporal, E-4, with a date of rank of 12 August 1970.  His character of service is listed as "13B4O ARTY" and the authority and reason for separation as "DD 214 SEPARATION."  The type of certificate issued was "Honorable" with a reentry eligibility (RE) code of 3-3B.  It shows his last command as "HHB 3D BN. 82nd ARTY USAREUR."  His primary MOS is shown as "13B4O GUNNER" with a secondary MOS of "67A1F Door Gunner."  It indicates he had 24 days of lost time and lists his awards as "C.I.B. PARA BADGE EM.AVIATOR BADGE AIR ASSAULT BADGE, EX.RIFLE/PISTOL PURPLE HEART (2) BRONZE STARS (V) (M) AIR MEDAL W/OAK LEAF CLUSTERS, NAT.DEF. ARCOMM. ARGOOD CON. RVN.SVC. RVN CAMPAIGN RVN GALLT. CROSS/PALM."

15.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

16.  Army Regulation 600-8-22 (Military Awards) provides the following:

	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 is required;

	b.  the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with award of the Bronze Star Medal; and 

	c.  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.

17.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states awards and decorations for all periods of service are to be listed in the priority sequence specified in Army Regulation 600-8-22.  Each entry is to be verified by the Soldier's records and abbreviations are not to be used.

18.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that 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 he was wounded in the right wrist and forearm during a mortar attack in June 1970.  He was treated first at an aid station and then at the 3rd Field Hospital.  The wound occurred at the same time he was treated for malaria and he is entitled to the Purple Heart.  He was awarded a second Bronze Star Medal with "V" Device.  The DD Form 214 he provides shows the proper listing of his awards. 

2.  The available medical records show treatment only for malaria.  

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 be a record of medical treatment.  

4.  The record does not contain and the applicant has not provided any documentation to corroborate the statement from his relative that he received a wound, as a result of hostile action, that required treatment by medical personnel or that any medical treatment for such a wound was made a matter of official record.  

5.  The record does not contain and the applicant has not provided any valid documentation to show that he was awarded a Bronze Star Medal for heroism. 

6.  The DD Form 214 provided by the applicant is very questionable in nature.  It has incorrect and invalid entries at a number of locations.  It also records a number of awards that are not verified by the official record in addition to the ones he is requesting at this time.  As such, it cannot be utilized to support the requested corrections to the official record.

7.  The applicant has provided insufficient verifiable evidence to warrant award of a Bronze Star Medal with "V" Device or the Purple Heart.  Therefore, the application should be denied. 

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)                                         AR20100028054





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ABCMR Record of Proceedings (cont)                                         AR20100028054



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