IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110008360 


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 two awards of the Purple Heart (PH); a valor award; a Vietnamese award; and an explanation for why his second Bronze Star Medal (BSM) for meritorious service awarded and presented in April 1971 was revoked.    

2.  The applicant states paperwork for two awards of the PH, a valor award, and a Vietnamese award were misplaced, lost, misfiled, or tossed away resulting in his not receiving these awards.  He claims with the exodus of Soldiers from the Republic of Vietnam and from the Army at the time, clerks were overworked and he believes and has seen proof of Army-required paperwork not being completed. He claims to have been told by a clerk at Fort Ord, California during his separation processing that in a number of cases the Army was behind by 6 months to 1 year in doing the paperwork.  He states that over the years he has talked to a number of Soldiers who have had the same problem he has now.  

3.  The applicant also requests someone look into why his second BSM for meritorious service he received in April 1971 was revoked and he received an amendment showing the award covered two tours.  He claims that if the Army did not believe he should receive two BSMs, he should have at least received an Army Commendation Medal (ARCOM).  He asks if it would be possible to reinstate his second BSM.  


4.  The applicant further states when he returned from service, the Department of Veterans Affairs (VA) would not recognize his wounds because they were not documented in his military medical records.  However, the VA recently changed their opinion and he is providing evidence of their most recent decision on this issue. 

5.  The applicant provides the following documents in support of his application:

* Self-Authored Letter to the National Personnel Records Center (NPRC), dated June 2011
* Third-Party Statement from his Commanding Officer in the RVN
* VA Medical Documents

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’s record shows he enlisted in the Regular Army on 11 April 1969, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His record shows he was promoted to sergeant (SGT) on 5 March 1971, and this is the highest rank he attained while serving on active duty.  

3.  The applicant’s record shows he served in the RVN from 7 September 1969 to 17 November 1971.  His DA Form 20 (Enlisted Qualification Record) shows that during his RVN tour he was assigned to the U.S. Army Military Assistance Command, Vietnam (MACV), performing duties in MOS 71B as a clerk typist from 16 September 1969 through 12 February 1970, and in MOS 11B as a heavy weapons infantryman from 13 February 1970 through 
16 November 1971.  



4.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and item 41 (Awards and Decorations) does not list a valor award or second BSM.  It does indicate the applicant was awarded the BSM in Headquarters, MACV General Orders (GO) 4243, dated 11 August 1970.  The record contains Headquarters, MACV GO 1415, dated 2 April 1971, which amended GO 4243, dated 11 August 1970, pertaining to the applicant’s BSM by changing the period covered by the award from September 1969 to August 1970 to September 1969 to April 1971.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any documents or records showing the applicant was ever recommended for or awarded the PH or a valor award by proper authority while serving in the RVN.  It is also void of any documents indicating he was ever wounded in action, or of military medical treatment records showing he was ever treated for a combat related wound.

6.  On 17 November 1971, the applicant was honorably released from active duty, in the rank of SGT, after completing 2 years, 7 months, and 7 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214, as amended by DD Forms 215 (Correction to DD Form 214), issued on 23 July 1980 and 14 May 2010, show the applicant earned the following awards during his active duty tenure:

* BSM
* Air Medal (2nd Award)
* Army Good Conduct Medal
* National Defense Service Medal
* Vietnam Service Medal with 1 Silver Service Star
* Combat Infantryman Badge
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Machine Gun, Rifle and Automatic Rifle Bars
* Meritorious Unit Commendation
* RVN Gallantry Cross with Palm Unit Commendation
* RVN Training Service Medal Second Class
* RVN Color of Military Merit Fourragere


7.  On 24 May 2010, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command, in a response to an inquiry from a Member of Congress regarding the applicant’s awards, indicated the applicant’s entitlement 


to the PH could not be verified.  This official further indicated a review of the casualty records for the RVN failed to reveal the applicant’s name among the list of battle casualties.  This official also indicated the applicant’s entitlement to a valor award could not be verified.  

8.  The applicant provides a third-party statement from an individual who indicates he was the senior advisor of the 51st Regiment (Separate) on Hill 55, Quang Nam Province, RVN on 29 July 1971.  He claims his interest is in seeing the applicant receives the PH he deserves.  He further states he remembers the applicant being lightly wounded but assisted loading the wounded on a medical evacuation flight.  He states once the helicopter was full he advised the applicant to go to 51st ARVN (Army of Vietnam) aid station on Hill 55 to be treated.  He also provides VA medical treatment records that fail to identify treatment for specific wounds received in action in the RVN.  

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant’s name was not included on this roster of RVN battle casualties. 

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for a second award of the BSM or a valor award for the applicant.  

11.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  The regulation states for all personal decorations formal recommendations, approval through the chain of command, and announcement in orders are required.  It also states that continuation of the same or similar-type service already recognized by an award for meritorious service or achievement will not be the basis for a second award.  If appropriate, an award may be made to include the extended period of service by superseding the earlier award, or the award previously made may be amended to incorporate the extended period of service.

12.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action; the wound required treatment by military medical 


personnel; and a record of the medical treatment was made a matter of official record.

13.  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.

14.  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.  The applicant’s request to be awarded the PH, a valor award, and a second award of the BSM has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  

3.  The evidence of record fails to corroborate the information provided by the applicant or that contained in the third-party statement provided which, while indicating the applicant had a light wound when he was assisting wounded Soldiers on a medical evacuation flight, does not actually provide an eyewitness account of the circumstances surrounding the applicant being wounded as a result of enemy action.  



4.  Item 40 of the applicant’s DA Form 20 is blank indicating the applicant was never wounded in action.  The applicant’s MPRJ is void of medical treatment records showing he was ever treated for combat-related wounds received in the RVN.  Further, his name is not included on the DA Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, it would not be appropriate and/or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this time.  

5.  The applicant’s record is also void of any indication that he was ever recommended for or awarded a valor award during his active duty tenure, and the applicant has failed to provide documentary evidence of a specific act of heroism that would support a valor award.  Therefore, there is also an insufficient evidentiary basis to support granting this portion of the requested relief. 

6.  However, while the available evidence is insufficient for awarding the applicant a valor award, this in no way affects his right to pursue his claim for a valor award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

7.  Finally, this Board is not an investigative body and has no specific information regarding the amendment of the period covered by the applicant’s BSM for meritorious service in the RVN.  However, it is reasonable to presume the applicant’s command followed regulatory guidelines in extending the period of his BSM to cover the entire period of his service in the RVN and that the orders were originally published based on the projected date of his departure from the RVN, and were subsequently amended to change the period as a result of his extending his tour in the RVN.  There is no indication the command intended to provide him two awards of the BSM for meritorious service in the RVN 

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)                                         AR20110008360



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ABCMR Record of Proceedings (cont)                                         AR20110008360



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