BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100030337 


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:

* His rank be changed from E-4 to E-5
* His Army Commendation Medal with "V" Device be upgraded to the Bronze Star Medal with "V" Device
* Award of the Purple Heart

2.  The applicant states:

* He deserved his promotion to E-5
* He was recommended for award of the Bronze Star Medal with "V" Device but he received the Army Commendation Medal with "V" Device
* He received shrapnel wounds (hand and forehead) in combat in Vietnam but did not receive the Purple Heart
* He believes he was treated wrongly by Army personnel during his service 

3.  The applicant provides:

* Approved recommended list for promotion to E-5, dated 14 April 1969
* Recommendations for award, dated 3 December 1968 and 17 December 1968
* Orders for the Army Commendation Medal with "V" Device 



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 was inducted into the Army of the United States on 14 December 1967.  He served as a field artillery crewman in Vietnam from 13 May 1968 to 9 May 1969.  On 12 December 1969, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

3.  Item 5a (Grade, Rate or Rank) of his DD Form 214 shows the entry "CPL [corporal] (P) [permanent]."  Item 5b (Pay Grade) shows the entry "E-4."  Item 
24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart as an authorized award.   

4.  In Vietnam, the applicant was assigned to 1st Battalion, 92nd Field Artillery, 52nd Artillery Group, I Field Force Artillery Vietnam.  

   a.  On 3 December 1968, the Commander, 1st Battalion, 92nd Artillery forwarded a recommendation for awards through the Commander, 52nd Artillery Group to the Commanding General, I Field Force Vietnam Artillery.  Twenty-two Soldiers were recommended – two were recommended for the Silver Star; the applicant and 19 others were recommended for the Bronze Star Medal with "V' Device.

	b.  The Commander, 52nd Artillery Group reviewed the recommendation for awards.  Insofar as the personnel recommended for the Bronze Star Medal with "V' Device, he singled out the actions of the applicant and eight other Soldiers as not meeting the requirements for that award.  Instead, he recommended the applicant and the other eight Soldiers so identified be awarded the Army Commendation Medal with "V" Device.  The commander forwarded the recommendation to the Commanding General, I Field Force Vietnam Artillery.
5.  General Orders Number 523, Headquarters, I Field Force Artillery Vietnam, dated 27 December 1968, show the applicant was awarded the Army Commendation Medal with "V" Device for heroism on 14 November 1968 in Vietnam.

6.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was appointed to the grade of corporal effective 26 November 1968. 

7.  He provided an approved recommendation list for promotion to E-5, dated 
14 April 1969, which shows he was selected for promotion to E-5 by a selection board in March or April 1969.  Records also show he was selected for promotion to E-5 by a selection board on 10 November 1969.  

8.  There are no orders which show he was actually promoted to E-5. 

9.  There are no orders for the Purple Heart in the available records.  

10.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the Purple Heart and item 40 (Wounds) of his DA Form 20 is blank.  His name does not appear on the Vietnam casualty roster.  

11.  On 8 December 1969, he underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action.  Items 18 (Head, Face, Neck and Scalp) and 35 (Upper Extremities) of his Standard Form 88 (Report of Medical Examination) show he was rated normal.  

12.  A 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 Purple Heart pertaining to the applicant.

13.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained 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.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, 
that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

15.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  He contends he deserved his promotion to E-5.  However, the approved recommendation list for promotion to E-5 he provided only indicates he was selected for promotion to E-5, not that he was actually promoted.  In the absence of promotion orders to E-5, there is insufficient evidence on which to amend items 5a or 5b of his DD Form 214. 

2.  He contends he deserved the Bronze Star Medal with "V" Device instead of the Army Commendation Medal with "V" Device.  Evidence shows he was awarded the Army Commendation Medal with "V" Device for heroism on 
14 November 1968.  Although he was initially recommended for award of the Bronze Star Medal with "V" Device by his battalion commander, his group commander recommended he receive the Army Commendation Medal with "V' Device.  While the available evidence is insufficient for upgrading his Army 


Commendation Medal with "V" Device to Bronze Star Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal with “V” Device by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  He contends he was hit by shrapnel in his hand and forehead during combat in Vietnam.  However, no evidence shows he was wounded or injured as a result of hostile action in Vietnam.  His separation physical examination, dated 
8 December 1969, makes no mention of any injuries or wounds sustained as a result of hostile action.  His head/face and upper extremities were rated normal.  There are no orders for the Purple Heart in the available records.  Regrettably, there is insufficient evidence in which to base award of the Purple Heart in this case.

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)                                         AR20100030337





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ABCMR Record of Proceedings (cont)                                         AR20100030337



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