IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013097 


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 Air Medal (AM) he was awarded be added to his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and that he be awarded the Purple Heart (PH).  

2.  The applicant states, in effect, he was awarded the AM on 19 August 1969 and it is not listed on his DD Form 214.  However, he believes he should have received four awards based on 100 qualifying hours of flight time.  He also believes he should be awarded the PH for an ear injury he received during an ambush operation in October 1968. 

3.  The applicant provides a Department of Veterans Affairs (VA) letter issued in 1990 and service medical treatment records in support of his application.  

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 was inducted into the Army of the United States on 4 January 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was promoted to specialist four/E-4 on 13 February 1969 and this is the highest rank he held and served in on active duty.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 4 June 1968 through 9 August 1969.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 18th Infantry Regiment, 1st Infantry Division from 14 June through 14 July 1968, and to Company E of the same organization from 15 July 1968 through 9 August 1969, performing duties in MOS 11B as a scout observer and MOS 17K as a senior radar operator.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH and AM are not included in the list of awards entered in item 41 (Awards and Decorations).  Item 41 lists the following earned awards:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Combat Infantryman Badge (CIB)
* RVN Campaign Medal
* RVN Gallantry Cross with Palm (RVNGC) Unit Citation
* Army Commendation Medal (ARCOM)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any orders or other documents indicating he was awarded the PH by proper authority while serving on active duty.  It is also void of any documents showing he was wounded in action in the RVN or that he was treated for a combat-related wound by military medical personnel while serving in the RVN.

6.  The MPRJ is also void of flight records or documents showing the number of flight hours the applicant accrued during his RVN tour.  The record does contain an AM certificate and citation indicating the applicant was awarded the AM on 
19 August 1969, for the period 3 June 1968 through 5 August 1969.  



7.  The MPRJ also contains orders authorizing the following awards:

* Headquarters (HQs), 1st Infantry Division General Orders (GO) Number (#) 6843, dated 13 July 1969, awarding the Army Good Conduct Medal (AGCM)
* HQs, U.S. Army Training Center (USATC), Infantry and Fort Polk, Fort Polk, Louisiana, Special Orders (SO) #089, dated 6 April 1968, awarding the 1st Class Gunner M-60 Machine Gun Bar
* HQs USATC and Fort Leonard Wood, Fort Leonard Wood, Missouri, SO # 52, dated 21 February 1968, awarding the Sharpshooter Marksmanship Qualification Badge with Rifle Bar

8.  On 12 August 1969, the applicant was honorably released from active duty after completing 1 year, 7 months, and 9 days of active military service.  His 
DD Form 214 shows he earned the following awards during his active duty tenure:

* NDSM
* VSM
* RVNCM
* CIB
* ARCOM

9.  The applicant provides a VA letter, dated in 1990, that shows he received service connection for Post Traumatic Stress Disorder (PTSD) rated at 
30 percent, bilateral hearing loss rated at 0 percent, and tinnitus, right ear rated at 10 percent.  He also provides medical treatment records indicating he was treated for a perforation of his right ear in October and November 1968.  The treatment records indicate the ear injury could have resulted from an M-16 Rifle being fired near his head and the fact that he fired an M-60 Machine Gun.  

10.  A member of the Board's staff reviewed the Department of the Army (DA) Vietnam casualty roster.  There is no entry on this roster indicating the applicant was ever wounded in action in the RVN.

11.  A review of the 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, was also completed.  This review failed to reveal PH or AM orders pertaining to the applicant.

12.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states that in order to award the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment was made a matter of official record.

13.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  A silver service star is issued in lieu of 5 bronze service stars to denote participation in 
5 campaigns.  Table B-1 contains a list of list of campaigns and shows that during the applicant’s tenure or assignment in the RVN, participation credit was granted for the following campaigns:
* Vietnam Counteroffensive Phase IV (2 April-30 June 1968.
* Vietnam Counteroffensive Phase V (1 July-1 November 1968)
* Vietnam Counteroffensive Phase VI (2 November 1968-22 February 1969)
* TET 69 Counteroffensive (23 February-8 June 1969)
* Vietnam Summer-Fall 1969 (9 June-31 October 1969) 
14.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) defined terms and provided guidelines for award of the AM based upon the number and types of missions or hours.  Twenty-five category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the AM.  

15.  DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment tenure, the applicant's unit (2nd Battalion, 18th Infantry Regiment) was authorized the RVN Gallantry Cross with Palm Unit Citation for the period 12 July 1965 through 16 October 1968 by Department of the Army General Order (DAGO) 21, issued in 1969; and the RVN Civil Actions Honor Medal (RVNCAHM) First Class (FC) Unit Citation for the period 12 July 1965 through 7 April 1970 by DAGO 53, issued in 1970.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the AM he received be added to his record and that he be awarded the PH has been carefully considered and found to have partial merit.  

2.  The applicant’s record contains an AM certificate and citation that indicate he was awarded the AM for the period 3 June 1968 through 5 August 1969, and although there are no AM orders in the record, these documents are sufficiently convincing to support adding the AM to his record and DD Form 214.  However, the record is void of flight records confirming the total number of flight hours the applicant accrued and the AM award documented in the existing certificate and citation confirms eligibility for only the basic award of the AM.  As a result, there is insufficient evidence to support 3 additional awards, or a total of 4 awards of the AM as requested by the applicant.  

3. The evidence of record also contains orders confirming the applicant was awarded the AGCM, 1st Class Gunner M-60 Machine Gun Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar and that these awards were omitted from the list of awards contained in item 24 of his DD Form 214.  Therefore, it would be appropriate to add them at this time. 

4.  The evidence of record also confirms that based on the applicant’s RVN service and campaign participation, the applicant is eligible for the RVNGC with Palm Unit Citation, RVNCAHM FC Unit Citation, and 1 silver service star with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214.  

5.  In order to support award of the PH, there must be evidence the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.  The treatment records provided by the applicant, while confirming he was treated for a perforation to his right ear, fail to provide confirmation that this wound was received as a result of enemy action.  His record is void of any entries or documents corroborating his claim that he was wounded in action in the RVN or that show he was ever treated for a combat-related wound by medical personnel while serving in the RVN.  

6.  Item 40 of the applicant’s DA Form 20 contains no entries which indicate he was not wounded in action and the PH is not included in the list of awards contained in item 41.  Further, there is no entry pertaining to the applicant on the Vietnam casualty roster, the official DA list of RVN casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

7.  The applicant and all others concerned should know that this decision related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  




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 amending his DD Form 214 as follows:

   a.  deleting the current VSM entry and adding the Vietnam Service Medal with 1 silver service star; and

   b.  adding the Air Medal, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 1st Class Gunner Badge with Machine Gun Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

2.  The Board further determined that the evidence presented was 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 and additional awards of the Air Medal.  



      _______ _   _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)                                         AR20110013097



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ABCMR Record of Proceedings (cont)                                         AR20110013097


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