IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006504 


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 to be awarded the Purple Heart and the Bronze Star Medal (BSM) for valor and meritorious service.

2.  The applicant states he was told he would receive a Purple Heart for injuries received on 29 December 1971 for an enemy rocket attack and gun fire attack on a jeep he was riding security "shotgun" in.  He further states he spent 5 days in the hospital from shrapnel wounds, multiple abrasions, and contusions.  He goes on to state the letter of appreciation he received from a warrant officer was to be used to support his award of the BSM for meritorious service.

3.  The applicant provides seven pages of clinical records from his health records; a copy of a letter of appreciation to the applicant from a warrant officer; and an unidentified medical assessment, dated 2001.

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 enlisted in the Regular Army in Syracuse, New York, on 9 March 1970 for a period of 2 years.  He completed basic training and advanced individual training as a light vehicle driver at Fort Jackson, South Carolina.  He was transferred to Vietnam on 29 July 1970 for assignment to the 104th Engineer Company (Dump Truck).

3.  The documents provided by the applicant indicate he was admitted to the 3d Surgical Hospital on 29 December 1970 and was treated for a laceration to his forehead, multiple abrasions and contusions to the right side of his forehead, multiple abrasions and contusions to his right leg, and a sprain of his left ankle that resulted from a vehicular accident.  He was released on 2 January 1971.  On 8 March 1971, he was advanced to pay grade E-4.

4.  He departed Vietnam on 24 July 1971 for assignment to Fort Wolters, Texas, where he remained until he was honorably released from active duty (REFRAD) on 22 December 1971.  He completed 1 year, 9 months, and 14 days of active service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his REFRAD shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Army Good Conduct Medal.

5.  A review of the available records failed to show any evidence the applicant was recommended for or awarded the BSM for his service in Vietnam.  Additionally, there is no evidence to show his injuries in Vietnam were the result of enemy action or that he was awarded the Purple Heart.  His name is not contained on the Vietnam casualty listing.

6.  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 Purple Heart or BSM pertaining to the applicant.

7.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an 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.

8.  Army Regulation 600-8-22 states the BSM is awarded in time of war for heroism and for meritorious achievement or service not involving participation in aerial flight in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  Army Regulation 600-8-22 states there is no automatic entitlement to an award upon departure either from an assignment or from the service.  Only one award will be made for the same act, achievement, or period of meritorious service.

10.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows 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 the 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.

11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army to 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.  While the sincerity of the applicant's claim that he was told he would receive the Purple Heart for his injuries and the BSM for his service in Vietnam is not in doubt, the evidence of record and the evidence submitted with his application fail to support his claim.

2.  In the absence of evidence to show he was awarded the Purple Heart or sufficient evidence to establish that his injuries were the result of enemy action or that he was awarded he BSM or was, in fact, recommended for award of the BSM and the recommendation was not acted on, there appears to be no basis to grant his request.

3.  While the available evidence is insufficient for awarding the applicant the BSM, this in no way affects the applicant's right to pursue his claim for the BSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 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 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 this action in no way diminishes the sacrifices made by him in service to the United States during the Vietnam War.  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)                                         AR20110006504



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006504



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1