IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011658 


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 award of the Purple Heart and a Bronze Star Medal or Silver Star.

2.  He states he and another Soldier, T____ G____, were mine sweeping the road for a convoy carrying infantry Soldiers on 26 March 1967.  The convoy was moving very slow and he and T____ G____ were told to get on the front fenders of the lead truck.  After travelling about 200 yards they hit a mine that destroyed the truck, blew T____ G____ out into the road, and him into a rice paddy.  He was hit over the left eye with a piece of shrapnel and it cut his head open.  He got back to the truck and T____ G____ was badly wounded.  The infantry moved down the road and a firefight ensued with bullets hitting in front of T____ G____.  He picked up sandbags that had been on the fenders of the truck and placed them in front of T____ G____ to protect him from the bullets coming down the road from the enemy.

3.  He further states he was wounded in combat and he feels he should have received a Purple Heart.  He adds that because he put his life in danger by putting the sandbags in front of T____ G____, he should have received a Bronze Star Medal or Silver Star.

4.  He provides a sworn statement from a fellow Soldier.



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 records show he was inducted into the Army the United States on 13 April 1966.  He was awarded military occupational specialty 12A (pioneer) and was promoted to the rank of specialist five/pay grade E-5.

3.  His DA Form 20 (Enlisted Qualification Record) shows he performed duties as a pioneer during his tour of duty in the Republic of Vietnam while he was assigned to Company C, 8th Engineer Battalion, 1st Cavalry Division (Air Mobile), during the period 1 October 1966 to 23 September 1967.

4.  He was honorably released from active duty on 12 April 1968 and he was transferred to the U.S. Army Reserve Control Group (Annual Training).  He was credited with completion of 2 years of net active service.

5.  Item 24 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not list the Purple Heart. 

6.  Item 40 (Wounds) of his DA Form 20 is blank.  Item 41 (Awards and Decorations) does not list the Purple Heart.

7.  His records do not contain any evidence that indicates he was ever awarded the Purple Heart.

8.  The Vietnam casualty list does not contain his name.

9.  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 pertaining to the applicant.

10.  He provides a sworn statement from a fellow Soldier who stated:

	a.  The applicant was performing duties as his assistant demolitionist when the truck in which they were riding hit a mine and both of them were blown off the truck.  He had been sitting on the left fender and the applicant on the right fender.  He remembered seeing and talking to the applicant who had blood on his face and shirt.  The applicant told him that he had taken a piece of shrapnel but was not hurt bad.

	b.  He remembered hearing gunfire and seeing bullets hitting the ground.  The applicant placed sandbags in front of him to keep him from getting hit by the bullets.  The applicant should have received a Purple Heart because he was wounded that morning.  The applicant put his life at risk to place the sandbags in front of him so he would not get hit in the middle of the road.

	c.  The applicant should have received the Bronze Star Medal or Silver Star for his actions on that day.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.

12.  Army Regulation 600-8-22 states the Bronze Star Medal 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 n 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.

13.  Army Regulation 600-8-22 further states the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders is required.

14.  Title 10, U.S. Code, section 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.

15.  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 contends he was wounded by a mine explosion.  However, notwithstanding the fellow Soldier's sworn statement, there is no evidence in his available military personnel records or sufficient corroborating evidence showing he was injured as a result of hostile action, treated for such wound, or that the medical treatment was made a matter of official record.

2.  His DA Form 20 does not show he was wounded and his name is not listed on the Vietnam casualty listing.

3.  In the absence of evidence to show he was wounded or injured as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

4.  While the available evidence is insufficient for awarding him a Bronze Star Medal or Silver Star, this in no way affects his right to pursue his claim for one of these awards by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

5.  In view of the foregoing, there is insufficient basis for granting him the requested relief.

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 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)                                         AR20110011658



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ABCMR Record of Proceedings (cont)                                         AR20110011658



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