IN THE CASE OF:	  

		BOARD DATE:	    3 November 2011

		DOCKET NUMBER:  AR20110009550 


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 the following awards:

* Purple Heart
* Republic of Vietnam (RVN) Campaign Medal with Device 1960
* Vietnam Service Medal (VSM)
* National Defense Service Medal (NDSM)

2.  He states he suffered a concussion as a result of exposure to mortar fire.  He learned through a news broadcast that the Department of Veterans Affairs (VA) and the U.S. Government made a decision to award the Purple Heart to Vietnam Veterans who suffered concussions as a result of enemy action.  

3.  He provides:

* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A VA decision rating letter

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.  His military service records show he was inducted into the Army of the United States on 1 November 1966.  Upon completion of training, he served in military occupational specialty 64A (Light Vehicle Driver).  

3.  His DA Form 20 (Enlisted Qualification Record) shows:

* Item 31 (Foreign Service) – he served in Vietnam from 5 December 1967 through 9 November 1968
* Item 38 (Record of Assignments) – he was assigned to the 321st Transportation Company during his tour in Vietnam
* Item 40 (Wounds) – is blank

4.  Item 41 (Awards and Decorations) of his DA Form 20 does not contain the Purple Heart; however, it does show he was awarded the RVN Campaign Medal with Device 1960, VSM, and NDSM.

5.  His DD Form 214 shows he was honorably released from active duty on 
10 November 1968 and transferred to the U.S. Army Reserve Control Group (Annual Training).  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the Purple Heart; however it does show he was awarded the RVN Campaign Medal with Device 1960, VSM, and NDSM.

6.  In view of the foregoing, the RVN Campaign Medal with Device 1960 and NDSM will not be discussed further in this record of proceedings.  

7.  His name does not appear on the Vietnam casualty roster and his military medical records are not available for review.

8.  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 United States Army Human Resources Command, failed to reveal any orders awarding him the Purple Heart.  

9.  He provided a copy of his VA rating decision letter, dated 5 March 2010.  This letter shows he was granted 100% disability for service connected Post Traumatic Stress Disorder.

10.  A review of his records indicates he is entitled to additional awards that are not shown on his DD Form 214. 

11.  Department of the Army General Orders Number 8, dated 1974, announced   award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This pamphlet shows the 321st Transportation Company was awarded the Meritorious Unit Commendation (MUC) by Department of the Army General Order Number 53, dated 1970.

13.  Department of the Army Pamphlet 672-3 also lists campaign periods for the Vietnam era.  Five designated campaigns coincide with his period of service in Vietnam:

* Vietnam Counteroffensive, Phase III, 1 June 1967—29 January 1968 
* TET Counteroffensive, 30 January 1968—1 April 1968
* Vietnam Counteroffensive, Phase IV, 2 April 1968—30 June 1968 
* Vietnam Counteroffensive, Phase V, 1 July 1968—1 November 1968 
* Vietnam Counteroffensive, Phase VI, 2 November 1968—22 February 1969

14.  Army Regulation 600-8-22 (Military Awards) states a bronze service star, based on qualifying service for each campaign listed in Appendix B of this regulation, will be worn on the appropriate service medal.  A silver service star is authorized in lieu of five bronze service stars.

15.  Army Regulation 600-8-22 states that 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, and the medical treatment must have been made a matter of official record.  

16.  Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart).  The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness).  This message does not change the standards for award of the Purple Heart for concussion injuries.  This policy is retroactive to 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  His request for award of the PH was carefully considered; however, it is not supported by the available evidence of record.  

2.  The available records are void of documentation and the applicant has not provided sufficient evidence to show he was wounded or treated for wounds as a result of hostile action during his service in Vietnam.  His statement is not sufficient evidence as a basis for an award of the Purple Heart.  

3.  His contention that there were recent changes in Army regulations for award of the Purple Heart to Soldiers with TBI or a concussion is confirmed by MILPER Message Number 11-125.  However, this policy is only retroactive to                 11 September 2001.

4.  General orders awarded his unit the RVN Gallantry Cross with Palm Unit Citation and the MUC.  Therefore, it would be appropriate to correct his DD Form 214 to show these unit awards.

5.  He was previously awarded the VSM.  His records show he participated in five campaigns while serving in the RVN.  Therefore, he is entitled to one silver service star for wear on his VSM.

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:

	a.  deleting the VSM from item 24 of his DD Form 214; and

	b.  adding to item 24 of his DD Form 214 the:

* MUC
* Republic of Vietnam Gallantry Cross with Palm Unit Citation 
* VSM with one silver service star

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 award of the Purple Heart.  




      _______ _   _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)                                         AR20110009550





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ABCMR Record of Proceedings (cont)                                         AR20110009550



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