IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100029601 


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 Bronze Star Medal (BSM) with 1st Oak Leaf Cluster and Purple Heart (PH) be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he never received his first BSM.  In mid-May 1967, he was hit by mortar fire (shrapnel).  He never received the PH.  He states the first BSM may have been lost in the mail.  The PH may never have been written up because he told the doctor he didn't want to worry his mother.

3.  The applicant provides BSM with 1st Oak Leaf Cluster orders in support of his application.

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 record shows he enlisted in the Regular Army on 15 October 1966 and was trained in and awarded military occupational specialty (MOS) 36K (Field Wireman).  The record also shows he was promoted to the rank of sergeant/E-5 on 27 March 1969 and this is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he completed two tours of duty in the RVN.  The first tour was from 18 May 1967 through 13 May 1968 and the second was from 6 July 1969 through 29 January 1970.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his first RVN tour he was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 320th Artillery, from 24 May 1967 through 15 January 1968, and to Headquarters and Headquarters Company (HHC), 765th Transportation Battalion for the remainder of his tour.  It also shows that during his second RVN tour, he was assigned to HHC, 1st Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade.

5.  The DA Form 20 also shows the applicant earned the following awards during his active duty tenure:

* National Defense Service Medal (NDSM)
* Parachutist Badge
* Vietnam Service Medal (VSM)
* RVN Campaign Medal with Device (1960)
* four overseas service bars
* Expert Marksmanship Qualification Badge with Rifle Bars (M-14 & M-16)

6.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  His military personnel records jacket (MPRJ) is void of any documents indicating he was wounded in action while serving in the RVN and contains no medical treatment records showing he was ever treated for a combat-related wound.

7.  The MPRJ contains Headquarters, 173rd Airborne Brigade, General Order (GO) Number 279, dated 12 February 1970, which awarded the applicant the BSM with 1st Oak Leaf Cluster for meritorious service in the RVN from 17 July 1969 to 30 January 1970.

8.  On 1 February 1970, the applicant was honorably released from active duty in the rank of SGT/E-5 after completing 3 years, 10 months, and 7 days of active military service.  The DD Form 214 he was issued shows he earned the following awards in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized):

* NDSM
* VSM
* RVN Campaign Medal
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle Bar
* four overseas service bars

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam casualty roster.  The roster contains no entry on the applicant indicating he was wounded in action.

10.  A member of the Board staff also reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing general orders issued between 1965 and 1973 for the Vietnam era, maintained by the U.S. Army Human Resources Command Military Awards Branch.  No award orders pertaining to the applicant were found in ADCARS.

11.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, it required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.

12.  Paragraph 2-13 of Army Regulation 600-8-22 contains guidance on the VSM.  It states a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  A silver service star is issued in lieu of five bronze service stars to denote participation in five campaigns.

13.  Table B-1 of Army Regulation 600-8-22 contains a list of campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the following seven campaigns:

* Vietnam Counteroffensive Phase II, 1 July 1966-31 May 1967
* Vietnam Counteroffensive Phase III, 1 June 1967-29 January 1968
* Tet Counteroffensive, 30 January-1 April 1968
* Vietnam Counteroffensive Phase IV, 2 April-30 June 1968
* Tet 69 Counteroffensive 1969, 23 February-8 June 1969


* Vietnam Summer-Fall 1969, 9 June-31 October 1969
* Vietnam Winter-Spring 1970, 1 November 1969-30 April 1970

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment tenure, the applicant's units were awarded the following awards for the periods indicated in the DAGO identified:

* RVN Gallantry Cross with Palm Unit Citation, 5 May 1965-26 September 1970, DAGO Number 51, dated 1971
* RVN Civil Actions Honor Medal First Class Unit Citation, 15 April 1969-16 March 1971, DAGO Number 5, dated 1971

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the PH and BSM with 1st Oak Leaf Cluster should be added to his record has been carefully considered and is found to have partial merit.

2.  The evidence of record confirms the applicant was awarded the BSM with 1st Oak Leaf Cluster, or second award, for meritorious service in the RVN from 17 July 1969 through 30 January 1970 and that this award was authorized and announced in official orders.  Therefore, it would be appropriate to add the BSM (2nd Award) to the applicant's record and DD Form 214.

3.  The record also shows that based on his RVN service and campaign participation, he is eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and one silver service star and two bronze service stars with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214.

4.  The evidence of record fails to corroborate the applicant's claim that he was wounded in action and should have been awarded the PH and he failed to provide independent evidence to support this claim.  By regulation, in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and that this treatment was made a matter of official record.

5.  In this case, item 40 of the applicant's DA Form 20 is blank which indicates he was not wounded in action and item 41 does not include the PH in the list of earned awards.  His MPRJ is void of any documents indicating he was ever wounded in action or treated for a combat-related wound by military medical personnel and is void of orders or other documents indicating he was ever recommended for or awarded the PH by proper authority.  Absent any evidence indicating the applicant was wounded in action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

6.  The applicant and all others concerned should know this action related to award of the PH in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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.  deleting the VSM from item 24 of his DD Form 214; and

	b.  adding the BSM (2nd Award), VSM with one silver and two bronze service stars, RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation 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 award of the PH.



      ____________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)                                         AR20100029601



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ABCMR Record of Proceedings (cont)                                         AR20100029601



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