IN THE CASE OF:	  

		BOARD DATE:	 10 April 2012 

		DOCKET NUMBER:  AR20110018483 


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:

* Air Medal with 9th Oak Leaf Cluster and "V" Device
* Purple Heart
* Any additional awards and decorations to which he is entitled

2.  The applicant defers to counsel.

3.  He provides:

* A letter from a program supervisor for the State of Idaho Division of Veterans Services, dated 27 July 2011
* Headquarters, 1st Aviation Brigade, General Orders Number 5573, dated 12 August 1968
* A letter from an assistant adjutant general for the U.S. Army Flight Training Center, dated 24 September 1968
* A DD Form 214
* Three third-party statements

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart for injuries sustained while serving during combat in the Republic of Vietnam (RVN).  He further requests the applicant's DD Form 214 be corrected to show award of the Air Medal with 9th Oak Leaf Cluster and "V" Device.  

2.  Counsel states award of the Air Medal with 9th Oak Leaf Cluster and "V" Device is substantiated by General Orders Number 5573.

3.  Counsel contends award of the Purple Heart is substantiated by the three "Buddy Statements," including one from the medic who treated the applicant by removing shrapnel from his leg and suturing the wound.   Counsel also requests the Board consider "U.S. Code Title 38, Part II, Chapter 11, Subchapter VI, Section 1154(b) which states that any veteran who engaged in combat with the enemy during active service with a military organization of the U.S. during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of an injury alleged to have been incurred in such service, that satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence, and, to that end, shall resolve every reasonable doubt in favor of the veteran."

4.  Counsel provides no additional evidence.

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 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 record shows he was inducted into the Army of the United States on 16 August 1966.  On 15 August 1968, he was released from active duty (REFRAD) and he was transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his remaining service obligation.  At the time of his REFRAD he had served 2 years of total active service.  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.


3.  His Military Personnel Records Jacket contains (and he also provides) Headquarters, 1st Aviation Brigade, General Orders Number 5573, dated 12 August 1968, which awarded him the Air Medal with 9th Oak Leaf Cluster and "V" Device.  

4.  His DA Form 20 (Enlisted Qualification Record) shows the following pertinent information:

	a.  Item 31 (Foreign Service) shows he served in the RVN from 25 February 1967 to 21 February 1968.

	b.  Item 38 (Record of Assignments) shows that during his tour of duty in the RVN he served in military occupational specialty 67N performing duty as a Helicopter Repairman in:  166th Transportation Detachment from 4 March to 27 August 1967 and 335th Assault Helicopter Company from 28 August 1967 to 18 February 1968.

	c.  Item 40 (Wounds) is blank.

5.  His DD Form 214 show the following awards:

* Air Medal
* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* 1 Overseas Service Bar

6.  A review of his personnel service records failed to show evidence and he did not provide any evidence showing that he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

7.  His name does not appear on the Republic of Vietnam casualty roster.

8.  A review of his personnel service records failed to show evidence and he did not provide any evidence showing that he was ever awarded or recommended for award of the Purple Heart.

9.  A 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 U.S. Army Human Resources Command, failed to reveal any additional orders for the the Purple Heart.

10.  The applicant's record contains a self-authored letter, dated 25 July 1978, wherein he requested assistance in obtaining documentation of an event in which he sustained shrapnel wounds in his upper thigh area and had the shrapnel removed in February 1968.  He attested he was recommended for the Purple Heart at the time, but refused the honor, so he was certain the injury was documented somewhere in his file.

11.  His record also contains a General Services Administration (GSA) Form 6932 (Organizational Records Search Request and Reply), dated 4 August 1978, and a GSA Form 7230 (Reply to Congressional Inquiry), dated 7 August 1978, which show a search of the Morning Reports for the applicant's unit failed to show any entries of injury or going to a hospital from 1 November 1967 through 22 February 1968.

12.  His record also contains a GSA Form 7230 (Reply to Congressional Inquiry), dated 7 August 1978, which shows a search of the Morning Reports for the applicant's unit failed to show any entries of the applicant sustaining an injury or going to a hospital while serving in the RVN.

13.  The applicant provides three third-party statements rendered by fellow veterans with whom he served which reflect the following information:

	a.  On 24 September 2009, a former medic stated he knew the applicant while stationed in the RVN and served with him in the 335th Helicopter Assault Company.  He recalled treating the applicant on numerous occasions, but two in particular:

		(1)  "I removed shrapnel from his leg and sutured him...he made a big fuss because he would not sign the proper forms for being wounded...he indicated that he had to go back to work."

		(2)  "The other was when he and a few others complained of plugged and much pain in their ears.  While flying, they were involved in some sort of rapid decent [sic].  I thought someone was even sent to the rear to an evac hospital.  He also got banged around when his chopper had a crash landing.  It could have been back or shoulder problems."

		(3)  "I cannot remember exactly when [the applicant] got wounded...the ear problems and hard landings were probably during the rainy season...I am sure there are company records...even though at times...we did not write everything in the notes."

	b.  On 8 October 2009, a former gunship pilot and fire-team leader stated he knew the applicant while stationed in the RVN and served with him in the 335th Helicopter Assault Company.  He recalled:

		(1)  The applicant was a crew chief and door gunner on one of the aircraft which was extremely prone to hard landings due to the operating environment.  Due to the passage of time, he no longer remembers the names of crewmembers, but does remember that several crewmembers received injuries as a result of these incidents.

		(2)  They flew numerous combat missions and were usually faced with well-armed and well-trained North Vietnamese troops on these missions.  The crews faced not only accurate small arms and crew served weapons fire, but were exposed to the high vibration and noise levels produced by the helicopter and the firing of their own weapons systems.

	c.  On 24 September 2009, a former crew chief and door gunner stated he knew the applicant while stationed in the RVN and served with him in the 335th Helicopter Assault Company.  He recalls:

		(1)  He flew many combat support missions with the applicant who was also a crew chief and door gunner on his own aircraft.

		(2)  "I remember that [the applicant] was hit with some shrapnel on at least one occasion...It was not uncommon for crew to be hit and have the medics deal with the less serious injuries and then return to the mission.  We were dealing frequently with heavy combat and the associated serious injuries and death, and at the time it seemed our minor injuries were not important, so many of these type [sic] injuries were not properly documented."

14.  Army Regulation 600-8-22 (Military Awards) provides that 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 that 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.

15.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, 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 Counteroffensive Phase II
* Vietnam Counteroffensive Phase III
* TET Counteroffensive

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  An oak leaf cluster is authorized for wear for each additional award of unit awards.  This pamphlet shows the units to which the applicant was assigned was cited for award of the:

* Presidential Unit Citation for the period 6 to 23 November 1967 by Department of the Army General Order (DAGO) Number 42, dated 1969 as amended by DAGO Number 5, dated 1979
* Meritorious Unit Commendation for the period 1 February to 31 December 1967 by DAGO Number 48, dated 1968, as amended by DAGO Number 70, dated 1969
* Meritorious Unit Commendation for the period 5 May 1965 to 4 May 1967 by DAGO Number 48, dated 1968
* Meritorious Unit Commendation for the period 5 May to 31 December 1967 by DAGO Number 21, dated 1969, as amended by DAGO Number 46, dated 1969
* RVN Gallantry Cross with Palm Unit Citation for the period 27 March 1967 to 17 May 1968 by DAGO Number 21, dated 1969, as amended by DAGO Number 46, dated 1969

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show he was awarded the Purple Heart, Air Medal with 9th Oak Leaf Cluster and "V" Device, and any additional awards and decorations to which he is entitled were carefully considered and determined to have partial merit.

2.  General orders awarded him the Air Medal with 9th Oak Leaf Cluster and "V" Device.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  The applicant's record is void of any orders or other documents indicating he was recommended for or awarded a Purple Heart by proper authority while serving on active duty.  Additionally, there is no evidence in the available record and the applicant has not provided sufficient evidence which shows he sustained any injuries as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.  Accordingly, there is insufficient evidence to award him a Purple Heart.

4.  Records show the applicant participated in three campaigns while serving in the RVN.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show the bronze service stars.

5.  DAGOs awarded his Vietnam units the Presidential Unit Citation, three Meritorious Unit Commendations, and the RVN Gallantry Cross with Palm Unit Citation for actions during his tenure.  Therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

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 his DD Form 214 the:

* Air Medal
* Vietnam Service Medal

	b.  adding to his DD Form 214 the:

* Air Medal with 9th Oak Leaf Cluster and "V" Device
* Vietnam Service Medal with three bronze service stars
* Presidential Unit Citation
* Meritorious Unit Commendation with 2nd Oak Leaf Cluster
* 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 award of the Purple Heart.

3.  This action 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.



      _______ _   _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)                                         AR20110018483





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ABCMR Record of Proceedings (cont)                                         AR20110018483



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