IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110017342 


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 reconsideration of his previous application for award of the Purple Heart.  He submits a new request for correction of his record to show he was awarded the Army Commendation Medal (ARCOM).

2.  He states he was wounded in the head and ear by a fragment from an enemy grenade while engaged in ground combat in Vietnam on or about 18 or 19 March 1970.  After the firefight, the unit medic removed the fragments, dressed his wound, and filled out a wound tag.  He returned to his squad and they eventually returned to base camp.  He was not seen by medical personnel at the battalion aid station.  He sustained hearing loss from the explosion and later received a physical profile for his hearing loss.  He states he assumed he was recommended for the Purple Heart as a result of this wound.  On 14 December 1970, he was released from active duty and returned home.  During his separation processing, the clerk who filled out his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) failed to include the Purple Heart and the ARCOM.

3.  He provides:

* a statement from a retired master sergeant (MSG)/E-8
* an ARCOM Certificate
* general orders announcing award of the ARCOM to him
* his DD Form 214
* a memorandum, dated 9 February 1970, subject: Soldier of the Month
* photographs
* a DA Form 3349 (Medical Condition - Physical Profile Record)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000768, on 20 July 2010.

2.  The applicant has provided evidence which was not previously considered by the Board and warrants consideration at this time.

3.  With regard to the portion of his application pertaining to the ARCOM, 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.

4.  On 26 December 1968, the applicant enlisted in the Regular Army for a period of 2 years.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman) and assigned to duty in Vietnam.

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 31 (Foreign Service) he was credited with service in Vietnam from 29 May 1969 to 3 May 1970
* item 38 (Record of Assignments) he was assigned for duty in Vietnam with Company A, 1st Battalion, 22d Infantry, 4th Infantry Division, from 14 June 1969 to 25 April 1970
* item 38 he received all "excellent" conduct and efficiency ratings

6.  Item 40 (Wounds) of his DA Form 20 shows no entries, and item 41 (Awards and Decorations) does not show he was awarded the Purple Heart.

7.  On 2 April 1970, Headquarters, 4th Infantry Division, issued General Orders Number 2070 announcing award of the ARCOM to the applicant for meritorious service from May 1969 to May 1970.

8.  A DA Form 3349, dated 16 June 1970, shows he was given a profile for bilateral hearing loss.

9.  He was honorably released from active duty on 14 December 1970 under the Christmas Early Release Program after completing 1 year, 11 months, and 19 days of total active service.  

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Vietnam Service Medal (VSM) with three bronze service stars
* National Defense Service Medal 
* Republic of Vietnam (RVN) Campaign Medal
* Combat Infantryman Badge 
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Vietnamese Cross of Gallantry with Palm

11.  His service medical records are not available for review.

12.  His record does not include orders awarding him the Purple Heart.  

13.  His name does not appear on the Vietnam casualty roster.

14.  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 Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal orders awarding the Purple Heart to him.

15.  He provides a statement from MSG T------- J. B------, who states:

I was assigned to Headquarter [sic] Company, 1st Battalion and 22nd Infantry at the same time as [the applicant].  I distinctly remember encountering [the applicant] upon the return of A Company after the firefight of 18, 19 March of 1970.  [The applicant] was bandaged on his head and right ear, and his uniform was covered with blood.  When asked about his wound, he indicated that it was as a result of an enemy hand grenade blast during the firefight that his company was engaged in.  I remember the blood on the bandage and uniform were indicative of a severe head and ear wound.  When I asked why he wasn't medically evacuated, he said, he was still needed during the firefight by his squad.  He continued to wear a bandage for several days.

16.  The available records do not include documentation confirming MSG T------- J. B------ was assigned to the same battalion as the applicant during the period in question.  Orders in ADCARS confirm MSG T------- J. B------ was assigned to the battalion as a specialist four/E-4 in September and October 1970.  

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

18.  Review of the applicant's record indicates he is entitled to additional awards not shown on his DD Form 214.

19.  On 1 May 1969, Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, LA, issued Special Orders Number 103 awarding him the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.

20.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal (AGCM) was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

21.  His record is void of documentation showing he was the subject of any disciplinary actions during his active duty service or that he received a commander's disqualification for award of the AGCM.

22.  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 1st Battalion, 22d Infantry, was cited for award of the RVN Civil Actions Honor Medal First Class Unit Citation for the period 1 October 1966 to 31 October 1969, by Department of the Army General Orders Number 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  MSG T------- J. B------ states he was not a witness to the incident in which the applicant was injured, and he states the applicant was the source of the information regarding the circumstances under which he was injured.  While there is no reason to doubt the statement, it does not confirm the applicant received wounds as the result of hostile action; it simply confirms the applicant told him this was the case.  

2.  In the absence of documentation verifying the applicant was wounded as the result of hostile action, that his wounds required treatment by medical personnel, and that medical treatment was made a matter of official record, there is an insufficient basis upon which to award him the Purple Heart.  

3.  General orders awarded him the ARCOM.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

4.  He received all "excellent" conduct and efficiency ratings throughout his service, and there is no record of a commander's disqualification for award of the AGCM.  In light of his overall record of service, it would be appropriate to award him the first award of the AGCM based on completion of a qualifying period of active Federal service from 26 December 1968 to 14 December 1970 and to correct his DD Form 214 to show this award.

5.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  Therefore, he is entitled to correction of his DD Form 214 to show this badge.

6.  He served in a unit during a period for which it was cited for award of the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show this 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 of partial relief.  Therefore, with regard to the ARCOM, the Board determined that the evidence presented was sufficient to warrant relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:  

	a.  awarding him the AGCM (1st Award) for the period 26 December 1968 to 14 December 1970 and

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

* ARCOM
* AGCM (1st Award) 
* Sharpshooter Marksmanship Qualification Badge with Machinegun Bar
* RVN Civil Actions Honor Medal First Class Unit Citation

2.  The Board further determined that the evidence presented in support of the Purple Heart is insufficient to warrant the requested relief.  As a result the Board recommended denial of amending the decision of the ABCMR set forth in Docket Number AR20100000168, dated 20 July 2010.



      _______ _   __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)                                         AR20110017342





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ABCMR Record of Proceedings (cont)                                         AR20110017342



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