IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110017283 


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 (PH).  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Army Commendation Medal (ARCOM)
(1st oak leaf cluster (OLC)) and with “V” (Valor) Device.

2.  The applicant states no PH was awarded for injuries he received when he was thrown from his track vehicle as a result of an explosion.  He also states his DD Form 214 fails to reflect the ARCOM (1st OLC) and with “V” Device.

3.  The applicant provides:

* his DD Form 214
* a Department of Veterans Affairs (DVA) letter, dated 8 June 2010 and treatment record
* General Orders (GO) Number 673, issued by Headquarters, II Field Force Vietnam Artillery, dated 22 June 1970

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 was inducted into the Army of the United States on 18 August 1969.  He was initially trained in and awarded military occupational specialty 16F (Light Air Defense Artillery Crewman).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  The record shows the applicant served in the Republic of Vietnam (RVN) from 24 January 1970 to 22 March 1971.  Item 38 (Record of Assignments) of his
DA Form 20 (Enlisted Qualification Record) shows that during his RVN tour, he was assigned to Battery D, 5th Battalion, 2nd Artillery, performing duties in MOS 16F as a cannoneer and squad leader.  Item 40 (Wounds) is blank and item 41 (Awards and Decorations) does not include the PH in the list of earned awards.  However, it does show he was awarded the ARCOM with “V” Device by GO Number 673 and the ARCOM (1st OLC) for the period January 1970 to December 1970 by GO Number 1336, issued by the same headquarters, dated 10 December 1970.  The DA Form 20 also shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains both of the ARCOM award orders listed in item 41 of the DA Form 20.  However, the MPRJ is void of orders or other documents indicating the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever wounded in action while serving in the RVN.

5.  On 24 March 1971, the applicant was honorably released from active duty (REFRAD), in the rank/grade of SGT/E-5, after completing 1 year, 7 months, and 7 days of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows the:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)


* ARCOM
* Army Good Conduct Medal 

6.  The applicant provides a DVA statement, dated 5 November 2009.  It indicates the applicant’s service treatment records show treatment for a back injury related to a tank explosion.  The document provides no facts and circumstances related to when this injury was incurred or whether or not it was caused by enemy action.  The service medical treatment record upon which this statement is based was not provided.  

7.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not contain the applicant's name.  Additionally, 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 United States Army Human Resources Command, failed to reveal PH orders pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on award of the Purple Heart.  It states in order to support award of the Purple Heart there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  

9.  Paragraph 2-13 of the awards regulation contains the regulatory guidance on the Vietnam Service Medal.  It states that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970)
* Sanctuary Counteroffensive (1 May - 30 June 1970)
* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) 

10.  Army Regulation 600-8-22 states an OLC is awarded to denote the second and succeeding awards of certain decorations, among which is the ARCOM.

11.  Army Regulation 600-8-22 states the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Army Commendation Medal, Air Medal, and the Bronze Star Medal.


12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 5th Battalion, 2nd Artillery, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 2 December 1966 through 15 January 1971 by Department of the Army GO Number 54, dated 1974.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the PH and the addition of the ARCOM (1st OLC) and with “V” Device to his DD Form 214 has been carefully considered and found to have partial merit.

2.  General orders awarded the applicant two awards of the ARCOM, one with “V” Device.  Therefore, his DD Form 214 should be corrected to show the ARCOM (2nd Award) and with "V" Device.

3.  The evidence of record further shows that based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation and 3 bronze service stars for wear on his already-awarded VSM.  Additionally, his record shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, his DD Form 214 should be corrected to show these awards.

4.  The applicant’s request to be awarded the PH has also been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence confirming the member was wounded as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record. 

5.  The applicant’s record is void of any evidence he was ever wounded in action or that he was ever treated for a combat-related wound by medical personnel, or that the treatment was made a matter of official records.  Item 40 of his DA Form 20 is blank, indicating he was never wounded as a result of hostile action.  His MPRJ is void of medical treatment records indicating he was ever treated for a combat-related wound.  In addition, the applicant failed to provide service medical treatment records containing facts and circumstances supporting the back injury comment contained in the DVA statement he provided.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.



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 Vietnam Service Medal and the Army Commendation Medal;

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

* Army Commendation Medal (2nd Award) and with “V” Device 
* Vietnam Service Medal with 3 bronze service stars
* RVN Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

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)                                         AR20110017283



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ABCMR Record of Proceedings (cont)                                         AR20110017283



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