IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004474 


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 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart with 2nd Oak Leaf Cluster (OLC).

2.  The applicant states he recently discovered that official orders had, in fact, been published to award him three awards of the Purple Heart.

3.  The applicant provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* General Orders (GO) Number 1933, (Purple Heart)
* GO Number 2685 (Purple Heart)
* GO Number 2849 (Purple Heart)
* GO Number 387, amendment to GO Number 2849 (Purple Heart with 1st OLC)

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.  Having prior enlisted service, the applicant was appointed as a second lieutenant in the Corps of Engineers and executed an oath of office on 16 June 1967.  He served in Vietnam from 15 November 1968 to 13 April 1971 in multiple units, including:

* 173rd Engineer Company
* 31st Engineer Detachment, 5th Special Forces Group
* 87th Engineer Company, 199th Infantry Brigade
* Special Operations Augmentation, 5th Special Forces Group

3.  He was honorably released from active duty on 3 December 1973.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Bronze Star Medal with 2nd OLC
* Air Medal
* Army Commendation Medal
* Purple Heart with 1st OLC
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Bronze Star
* Parachutist Badge
* Ranger Tab

4.  On 19 October 2006, the ABCMR granted him relief with respect to various awards.  Accordingly, he was reissued a new DD Form 214 that shows his authorized awards as the:

* Silver Star
* Bronze Star Medal with 4th OLC and "V" Device
* Purple Heart with 1st OLC
* Air Medal
* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal with one silver and one bronze service star
* Republic of Vietnam Campaign Medal with Device (1960)
* Presidential Unit Citation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Gallantry Cross with Bronze Star
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Combat Infantryman Badge
* Parachutist Badge
* Ranger Tab

5.  On 9 December 2009, he was issued a DD Form 215 that added award of the Special Forces Tab.

6.  He provides four GO as follows:

* GO Number 1933, issued by Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, dated 26 November 1969, awarded him the Purple Heart for wounds received in action in the Republic of Vietnam on 23 November 1969
* GO Number 2685, issued by Headquarters, U.S. Army Vietnam (USARV), dated 16 September 1971, awarded him the Purple Heart for wounds received in action in the Republic of Vietnam on 10 April 1971
* GO Number 2849, issued by Headquarters, USARV, dated 5 October 1971, awarded him the Purple Heart for wounds received in action in the Republic of Vietnam on 10 April 1971
* GO Number 387, issued by Headquarters, First U.S. Army, dated 2 March 1972, amended GO Number 2849 to read Purple Heart with 1st OLC

7.  Item 21 (Awards and Decorations) of his DA Form 66 (Officer Qualification Record) lists two awards of the Purple Heart by authority of GO Number 1933, dated 26 November 1969, and GO Number 2849, dated 5 October 1971.

8.  The Vietnam casualty roster shows he was wounded on 23 November 1969 and on 10 April 1971; it does not list a third injury/wound.

9.  His service records contain a casualty notification telegram notifying his next of kin of his 10 April 1971 injury.

10.  His available medical records confirm he suffered an injury to his eye on 10 April 1971 and he was subsequently evacuated and treated for this injury.

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against and enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an OLC will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for 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 medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant provides four GO, one of which amends an earlier GO to add an OLC.  Two GO appear to be duplicates awarding him the Purple Heart for the same injury incurred on 10 April 1971.  This is further confirmed by the fact that no third injury is listed on the Vietnam casualty roster, no third award of the Purple Heart is listed on his DA Form 66, and his available medical records do not support a third injury.

3.  Notwithstanding the applicant's contention and sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action a third time and received medical treatment, there is insufficient evidence upon which to base a third award of the Purple Heart.

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 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)                                         AR20110004474



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ABCMR Record of Proceedings (cont)                                         AR20110004474



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