IN THE CASE OF:	   

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006547 


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, in effect, that he be awarded the Purple Heart and that the awards of the Purple Heart and the Air Medal be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)  

2.  The applicant states that between November and January 1969 he was wounded during a rocket/mortar attack and received a shrapnel wound just above his right elbow and was told that he would be put in for a Purple Heart.  He goes on to state that when he left Vietnam the company clerk told him that he had two more medals coming and that they would be forwarded to Fort Dix, New Jersey.  However, while in transit, his orders were changed to Fort Campbell, Kentucky and he never received them.

3.  The applicant provides a letter explaining his application, a copy of a photograph of himself with a bandaged right arm, a copy of his Air Medal Certificate and a copy of 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.  The applicant was inducted in Nashville, Tennessee on 28 August 1968 and completed his basic training at Fort Campbell, Kentucky and his advanced individual training as a cook at Fort Knox, Kentucky before being transferred to Vietnam on 5 February 1969 for assignment to Headquarters and Headquarters Company, 2d Battalion, 28th Infantry Regiment, 1st Infantry Division.  He was promoted to the pay grade of E-5 on 8 January 1970.

3.  He departed Vietnam on 4 February 1970 and was transferred to Fort Campbell where he remained until he was honorably released from active duty (REFRAD) on 27 August 1970 due to the expiration of his term of service (ETS).  He had served 2 years of active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Vietnam Campaign Medal, and the Army Commendation Medal (ARCOM).

4.  A review of his official records shows that on 27 January 1970 , General orders Number 1120 issued by Headquarters, 1st Infantry Division awarded the applicant the ARCOM first oak leaf cluster (1OLC).  General Orders Number 1339 issued by the same headquarters on 1 February 1970 awarded him the Air Medal.  Neither of those awards were included on his DD Form 214.

5.  A review of his official records failed to show any evidence to show that the applicant was wounded or injured as a result of enemy action or that treatment for such injuries were made a matter of record.  Additionally, the FSM’s name is not contained on the Vietnam Casualty Listing and his DA Form 20 (Enlisted Qualification Record) contains no entries in block 40 under “Wounds”.

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 award of the Purple Heart.

7.  However, the applicant’s records do show that he had excellent conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

8.  Army Regulation 600-8-22 (Military Awards) states 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.

9.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal (AGCM) was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "Unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

10.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows that the FSM's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was wounded in Vietnam is not in doubt, he has failed to show through the evidence submitted with his application and the evidence of record, sufficient evidence to show that his wound was the result of enemy action and that treatment for the wound was made a matter of record.  Therefore, in the absence of such evidence, there appears to be no basis to award him the Purple heart at this time.

2.  However, his contention that he was awarded the Air Medal has been noted and found to have merit.  His records contain orders awarding him the Air Medal and the ARCOM 1OLC.  Accordingly, they should be added to his DD Form 214 at this time.

3.  After carefully examining the applicant’s record of service, it appears that the applicant should have received the first award of the AGCM for his service from 28 August 1968 through 27 August 1970.  This conclusion is based on the fact that the record is void of any derogatory information which would preclude the applicant from being awarded the AGCM and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving this award.

4.  The evidence suggests that the applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of his unit commanders.  Therefore, in the interest of justice, this error should be corrected and the applicant should be awarded the AGCM at this time. 

5.  Additionally, the applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.  Accordingly, he is entitled to have those awards added to his DD Form 214 at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Deleting the entry of the Army Commendation Medal from block 24 of his DD Form 214
* Adding the entry “ARCOM 1OLC” to block 24 of his DD Form 214
* Awarding him the AGCM (first award) for the period of 28 August 1968 to 27 August 1970 and adding it to his DD Form 214.
* Adding the awards of the Air Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his DD Form 214

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him the Purple Heart and adding it to his DD Form 214.

3.  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 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)                                         AR20110006547





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ABCMR Record of Proceedings (cont)                                         AR20110006547



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