IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110006341 


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 award of the Silver Star, Bronze Star Medal, and two awards of the Purple Heart.

2.  The applicant states he enlisted in the U.S. Army in January 1969 and was sent to Vietnam in October 1969.  He also states:

   a.  He served with the 135th Assault Helicopter Company as part of a U.S. Army and Royal Australian Navy partnership.  In November 1969, he was shot and lost the top part of the first finger on his left hand and part of his elbow.  He states he should have been awarded the Purple Heart.

   b.  In the January-February 1970 timeframe, he was in a helicopter crash in the Saigon River.  He was awarded the Bronze Star Medal, but never received the medal.

   c.  In March 1970, he was shot in the abdomen, received a second award of the Purple Heart, and returned to the United States.

   d.  He failed to report to his Army National Guard unit; he was apprehended by authorities and decided to reenlist rather than face going to jail.

   e.  He reenlisted in August 1970 and his DD Form 214 shows this as his initial date of entry into military service.  However, a Report of Medical Examination, dated 6 August 1970, shows "amputation to first joint of left index finger" as evidence of him being shot in the November-December 1969 timeframe.

   f.  He was sent to Vietnam in February 1971.  In March 1971, the helicopter he was in flipped over and he rescued the pilots.  He was awarded the Silver Star, but never received this medal either.  The only evidence he has is a report of his flight physical and a letter of commendation.

   g.  He would be very happy to receive these decorations for his actions in Vietnam.  He adds the Purple Heart will enable him to obtain medical care from the Department of Veterans Affairs (VA).  

3.  The applicant provides a timeline of his military service, report of medical examination, special orders, a letter of commendation, and his DD Form 214.

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.  A DD Form 398 (Statement of Personal History), prepared by the applicant on 6 August 1970, shows in item 8 (Military Service) the applicant placed an "x" in the "No" box in response to each question and placed his signature on this document:

   a.  Are you presently on active duty in the U.S. Armed Forces drawing full pay?
   
   b.  Are you presently a member of a U.S. Reserve or National Guard organization?

   c.  Have you previously served tours of extended active duty, drawing full pay, from which you were discharged or separated to civilian status?
3.  A DD Form 47 (Record of Induction) shows the applicant was inducted into the U.S. Army on 6 August 1970.  Item 8a (Prior Military Service) shows an "x" in the "No" block.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 22 (Military Occupational Specialties):  67N2O (UH-1 Helicopter Repairman);

   b.  item 31 (Foreign Service):  Vietnam from 12 March 1971 through
11 February 1972;

	c.  item 38 (Record of Assignments):  135th Assault Helicopter Company, from 19 March 1971 through 7 February 1972;

	d.  item 40 (Wounds):  no entry (blank); and

	e.  item 41 (Awards and Decorations) no listing of the Silver Star, Bronze Star Medal, or Purple Heart.

5.  A DD Form 214 shows the applicant entered active duty this period on
6 August 1970, was honorably released from active duty on 13 February 1972, and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.  It shows in:

   a.  item 22 (Statement of Service) that he completed 1 year, 6 months, and
8 days of net active service, including 11 months and 1 day of service in Vietnam, and no "other service"; and

   b.  item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Vietnam Service Medal, Air Medal, and Republic of Vietnam Campaign Medal with Device (1960).

6.  A review of the applicant's military personnel records failed to reveal any evidence that he was recommended for, authorized, or awarded the Silver Star, Bronze Star Medal, or Purple Heart.

7.  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 U.S. Army Human Resources Command, failed to reveal any orders for the Silver Star, Bronze Star Medal, or Purple Heart pertaining to the applicant.
8.  A review of the Vietnam casualty listing does not show the applicant's name.

9.  In support of his application, the applicant provides the following documents:

   a.  A timeline of his military service that, in pertinent part, shows he was:

* inducted in January 1969
* assigned to the 135th Assault Helicopter Company (Vietnam) in October 1969
* shot and lost the top part of the first finger on his left hand and part of his elbow in November-December 1969
* in a helicopter crash and awarded the Bronze Star Medal in the January-February 1970 timeframe
* shot in the abdomen and returned to the United States in March-April 1970
* "reinducted" into the U.S. Army in August 1970
* assigned overseas to Vietnam in January 1971
* in a helicopter crash, rescued the pilots, and awarded the Silver Star in February-March 1971
* awarded the Air Medal in June-July 1971
* shot out of a helicopter and medically evacuated in December 1971
* discharged from military service in February 1972

   b.  A Standard Form 88 (Report of Medical Examination) [page 1, only], completed for the purpose of the applicant's induction into the U.S. Army on
6 August 1970 that shows in the Clinical Evaluation section, item 35 (Upper Extremities), a checkmark in the "Abnormal" column and the notation "Amputation to first joint of left index finger (NCD)" [Not Considered Disabling].

   c.  Headquarters, 164th Combat Aviation Group, Special Orders Number 96, dated 6 April 1971, that authorized the applicant non-aviator crewmember status, effective 19 May 1971.

   d.  Headquarters, 135th Assault Helicopter Company, letter of commendation, dated 6 July 1971, that shows the commanding officer conveyed his appreciation to the applicant for his exceptional meritorious service and unquestionable loyalty during his tenure as commanding officer of the unit.

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.



   a.  The Purple Heart is awarded to any member who was wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action 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.

   c.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  A bronze "V" device indicates an act of heroism involving conflict with an armed enemy.

   d.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 

11.  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.

12.  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, Soldier Programs and Services Division,
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.  The applicant contends his DD Form 214 should be corrected to show award of the Silver Star, Bronze Star Medal, and two awards of the Purple Heart because he earned the medals, but never received them.  He also contends the action pertaining to the award of the Bronze Star Medal and the injuries that qualify him for two awards of the Purple Heart occurred during a period of military service that was prior to his "reinduction" into the U.S. Army on 6 August 1970.

2.  The applicant's claims were carefully considered.

   a.  Records fail to show the applicant served on active duty in the U.S. Army prior to 6 August 1970.  In fact, at the time of his induction on 6 August 1970, the applicant declared he had no prior military service.

   b.  The evidence of record shows the applicant's left index finger had been amputated to the first joint prior to his induction into the U.S. Army on 6 August 1970.  The medical record the applicant provides offers no evidence that this injury was received in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

   c.  Item 40 of the applicant's DA Form 20 does not show he was wounded in action, the applicant's name is not listed on the Vietnam casualty listing, and there is no evidence the applicant was awarded the Purple Heart.

   d.  There are no orders or any other Army records that show the applicant was awarded the Silver Star or that he was recommended for the award.

    e.  There are no orders or any other Army records that show the applicant was awarded the Bronze Star Medal or that he was recommended for the award.

3.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart, Silver Star, or Bronze Star Medal.

4.  While the available evidence is insufficient for correcting the applicant's records to show a Silver Star and/or Bronze Star Medal, this in no way affects his right to pursue his claim for the award(s) by submitting a request through his Member of Congress under the provisions of 10 USC 1130.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20110006341



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ABCMR Record of Proceedings (cont)                                         AR20110006341



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