IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110015520 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Combat Infantryman Badge (CIB) and the third award of the Purple Heart.

2.  He states he was in combat and has a combat military occupational specialty (MOS).  He explains he advanced towards a North Vietnamese Army position and radioed for support.  He states when the rockets came, the rockets were too close.

3.  He provides his DD Form 214 and DD Form 215 (Correction to DD Form 214).

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 military records show he was inducted into the Army of the United States on 5 September 1968.  After completing basic and advanced individual training he was awarded MOS 11B (Light Weapons Infantryman).  He served in Vietnam from 28 January 1969 to 9 March 1969.  On 15 July 1969, he was retired due to permanent disability.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows the following:

* 4 February 1969, assigned to Air Cavalry Troop, 11th Armored Cavalry Regiment (ACR), Vietnam, in MOS 11B
* 12 March 1969, patient, 249th General Hospital
* 29 March 1969, casual, enroute to the Continental United States

4.  Headquarters, 11th ACR, General Orders Number 32, dated 13 March 1969, contained in his official military personnel records, show he was awarded the Purple Heart for wounds received in action on 25 February 1969.

5.  Headquarters, 93d Evacuation Hospital, General Orders Number 69, dated 
10 March 1969, contained in his official military personnel records, show he was awarded the Purple Heart (First Oak Leaf Cluster) for wounds received in action on 9 March 1969.

6.  Headquarters, II Field Force Vietnam, General Orders Number 1196, dated 10 May 1969, contained in his official military personnel records, show he was awarded the Silver Star, for his action on 9 March 1969.  The order stated that the applicant distinguished himself by gallantry in action while engaged in military operations against a hostile force on 9 March 1969 while assigned to Air Calvary Troop, 11th ACR.  It further stated that "on this date when the platoon entered a heavily-fortified base camp, a flank squad came under intense hostile fire and was pinned down, [the applicant] immediately began placing suppressive fire on the enemy positions so that his comrades could assault and silence them."

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214, as corrected by a DD Form 215, shows the following:

* Silver Star
* Purple Heart (1st Oak Leaf Cluster)
* National Defense Service Medal
* Vietnam Service Medal (VSM)
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
8.  His military personnel records do not contain any general orders awarding him the third award of the Purple Heart.  Additionally, his name is only listed on the Vietnam casualty listing for his wounding that occurred on 9 March 1969.

9.  His records show no evidence of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice and no evidence of courts-martial or any other type of adverse action.  Additionally, his DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his service.

10.  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.

11.  Army Regulation 600-8-22 (Military Awards) states the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  

12.  U.S. Army Vietnam Regulation 672-1 (Awards and Decorations) provided for award of the CIB to infantry personnel who were members of infantry platoons and squads in armored cavalry squadrons and regiments.  

13.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained 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 by a medical officer, and the medical treatment must have been made a matter of official record.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.

14.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Army Good Conduct Medal (AGCM) is awarded to individuals who have completed a qualified period of active duty enlisted service.  For first award only, upon termination of service, on or after 27 June 1950, of less than 1 year when final separation was by reason of physical disability incurred in line of duty.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units which served in the Vietnam War.  This pamphlet shows the Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units that served in Vietnam between 20 July 1965 and 28 March 1973 which were subordinate to Headquarters, U.S. Army Vietnam by DAGO Number 8, dated 1974.

16.  Appendix B of Army Regulation 600-8-22 (Military Awards) states that a bronze service star will be awarded for wear on the VSM for participation in each campaign.  His records indicate he participated in the following campaigns:

* Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969)
* Tet 69/Counteroffensive (23 February 1969 - 8 June 1969)

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he served in an infantry MOS and was assigned to the 11th ACR.  Additionally, his orders awarding him the Silver Star confirm that he participated in active ground combat while assigned to Air Calvary Troop, 11th ACR.  Therefore, he is entitled to the award of the CIB.

2.  There is no evidence, to include medical records and he did not provide any substantial evidence to show entitlement to the third award of the Purple Heart.  There are no general orders available which awarded him the third award of the Purple Heart.  The evidence of record shows he sustained wounds on               25 February 1969 and again on 9 March 1969.  He was hospitalized on 12 March 1969 and remained in the hospital until he was medically evacuated on 29 March 1969.  In the absence of medical evidence or orders awarding him the third award of the Purple Heart there is an insufficient basis upon which to approve his request.

3.  The evidence of record shows he received "excellent" conduct and efficiency ratings and he had no adverse actions or commander's disqualification for award of the AGCM.  Therefore, he is entitled to the first award of the AGCM for the period 5 September 1968 through 15 July 1969 and to correction of his DD Form 214 to show this award.

4.  The evidence shows he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and his records should be corrected to show this unit award.

5.  Additionally, evidence shows he participated in two campaigns during his service in Vietnam.  Therefore, he is entitled to correction of his records to show award of two bronze service stars for wear on his already-awarded 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 from item 24 of his DD Form 214 the VSM;

   b.  awarding him the CIB effective 9 March 1969;
   
	c.  awarding him the AGCM (1st Award) for the period 5 September 1968 through 15 July 1969; and

	d.  adding to item 24 of his DD Form 214 the CIB, VSM with two bronze service stars, AGCM (1st Award), and the 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 to the third 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)                                         AR20110015520





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ABCMR Record of Proceedings (cont)                                         AR20110015520



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