IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110001398 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Silver Star and a second award of the Purple Heart.

2.  The applicant states the medals were presented to him at Fort Hood, TX, but they are not listed on his DD Form 214. 

3.  The applicant provides his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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 2 May 1966 and he held military occupational specialty 11D (Armor Intelligence Specialist).  He served in Vietnam with Headquarters and Headquarters Company, 2nd Battalion, 47th Infantry, from 10 January 1967 to 7 January 1968.  

3.  He was honorably released from active duty on 3 May 1968 and he was transferred to the U.S. Army Reserve to complete his remaining service obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal with one bronze service star
* Purple Heart
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Combat Infantryman Badge

4.  General Orders Number 147, issued by Headquarters, 9th Infantry Division, on 8 March 1967, awarded him the Purple Heart for wounds received in action on 27 February 1967.

5.  There is nothing in six typical sources that shows he was awarded a Silver Star or a second award of the Purple Heart.

	a.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows his one injury on 27 February 1967; it does not list a second injury and item 41 (Awards and Decorations) lists only one award of the Purple Heart but it does not list the Silver Star.

	b.  His name is listed on the Vietnam casualty roster as having been wounded as a result of hostile action on 27 February 1967; no second wound/injury is listed.

	c.  There are no official orders in his records that show he was awarded a Silver Star or a second award of the Purple Heart.

	d.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the Army Human Resources Command (AHRC), failed to reveal orders for the Silver Star or any Purple Hearts.

	e.  The available medical records do not show a second combat wound/injury or treatment.

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

	a.  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.

	b.  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.

7.  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.

8.  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.  

9.  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.  With respect to the second award of the Purple Heart:

	a.  The applicant was wounded in Vietnam on 27 February 1967 and he was awarded the Purple Heart for this wound.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by personnel, and the medical treatment must have been made a matter of official record.

	b.  His service record is void of any orders that show he was awarded a second award of the Purple Heart; his name is shown on the Vietnam casualty roster for the one injury on 27 February 1967; his DA Form 20 also listed the one award of the Purple Heart for his 27 February 1967, and his medical records are not available for review with this case. 

	c.  In the absence of additional documentary evidence such as official orders, operation reports, morning reports, after action reports, or other additional documentation that conclusively shows he was wounded or injured a second time as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

2.  With respect to the Silver Star:

	a.  The third highest award for valor is the Silver Star which requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. The ABCMR acknowledges and applauds the applicant's service in Vietnam.  

	b.  However, the governing Army regulation states that for personal decorations (which include the Silver Star) formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of official orders, there is insufficient evidence to correct his records to show the Silver Star.

	c.  Nevertheless, while the available evidence is insufficient for adding the Silver Star to his DD Form 214,if in fact he was not awarded it 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.  If he has Silver Star orders, he may provide them with a request for reconsideration.


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)                                         AR20110001398



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ABCMR Record of Proceedings (cont)                                         AR20110001398



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