IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110011194 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and the issuance of a DD Form 215 (Correction to DD Form 214) to show the following:

* Purple Heart with Oak Leaf Cluster
* any other awards to which he may be entitled

2.  The applicant states, in effect, the Purple Heart is not annotated on his 
DD Form 214 and he was unaware of the impact of not having the Purple Heart listed on his DD Form 214 in regard to his Department of Veterans Affairs benefits.

3.  The applicant provides:

* DD Form 214
* Department of the Army General Orders (DAGO) Number 128, dated 
6 May 1969

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 served honorably in the Army of the United States from 
12 August to 14 August 1968 until he was discharged for immediate enlistment.  On 15 August 1968, he enlisted in the Regular Army.  He completed training and he was awarded military occupational specialty 61B (Water Craft Operator).  The highest rank/grade he attained while on active duty was specialist five/E-5.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 15 March 1969 through 12 March 1970.  

4.  Item 38 (Record of Assignments) of his DA Form 20 shows he was assigned to the 1099th Transportation Company and the 159th Transportation Company.

5.  Item 40 (Wounds) of his DA Form 20 contains no entries.

6.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.

7.  A review of his personnel service records failed to show evidence that he was ever awarded the Purple Heart. 

8.  He was honorably discharged from active duty for hardship reasons on 18 November 1970 after completing 2 years, 3 months, and 7 days of creditable active service.  His two DD Forms 214 show he was awarded the National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with 1960 Device, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

9.  The applicant provides a copy of DAGO Number 128, Headquarters, 3rd Field Hospital, Vietnam, dated 6 May 1969, awarding him the Purple Heart for wounds received in action on 5 May 1969 while assigned to the 1099th Transportation Company.  This order appears to award the applicant a second award of the Purple Heart.

10.  The applicant's name appears once on the Vietnam Casualty Roster for a wound received on 5 May 1969 in connection with military ground operations against a hostile force. 

11.  A 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 U.S. Army Human Resources Command, failed to reveal any orders for a second Purple Heart pertaining to the applicant.

12.  DAGO 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.

13.  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

14.  Army Regulation 310-10 (Military Orders), then in effect, prescribed the policies and mandated operating tasks for the orders program of the military personnel system.  The regulation established formats for various types of orders.  Orders relating to awards and decorations were completed using format 320.  During Vietnam, format 320 for orders awarding the Purple Heart to multiple individuals required:

* paragraph 1 – list sections, for example, Section I (Purple Heart), Section II (Purple Heart, First Oak Leaf Cluster), Section III (Purple Heart, Second Oak Leaf Cluster)
* section I, Award of the Purple Heart – list all Soldiers and individual dates of action
* section II, Award of the Purple Heart (First Oak Leaf Cluster) – list all Soldiers and individual dates of action
* section III, Award of the Purple Heart (Second Oak Leaf Cluster) – list all Soldiers and individual dates of action



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart with Oak Leaf Cluster was carefully considered and determined to have partial merit.

2.  The applicant's name appears once on the Vietnam Casualty Roster showing he was wounded in action on 5 May 1969.  Unfortunately, the 3rd Field Hospital did not issue his Purple Heart orders in the correct format.  This mistake makes the order confusing; however, it is clear from the applicant's records and from the Vietnam Casualty Roster that he is entitled to one award of the Purple Heart.

3.  The applicant's DD Form 214 should be corrected to show the Purple Heart.

4.  General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure in the unit.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

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 adding the following to item 24 of his DD Form 214 for the period ending 18 November 1970:

* Purple Heart
* Republic of Vietnam Gallantry Cross with Palm Unit Citation



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 correcting his DD Form 214 to show award of an Oak Leaf Cluster denoting a second 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)                                         AR20110011194



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ABCMR Record of Proceedings (cont)                                         AR20110011194



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