IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110019775 


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 Purple Heart and other awards to which he is entitled.

2.  He states his DD Form 214 is missing several citations and awards, most importantly the Purple Heart he received while he was in the 93rd Evacuation Hospital in the Republic of Vietnam in 1971.  He believes this was an error due to an oversight when the DD Form 214 was issued at the time of his release from active duty (REFRAD) at Fort Ord, CA in November 1971.

3.  He provides his DD Form 214, a DA Form 1811 (Physical and Mental Status on Release from Active Service), and reassignment and REFRAD orders.

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 enlisted in the Regular Army on 7 February 1969 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).  The highest rank/grade he attained was specialist five (SP5)/E-5.

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

* item 31 (Foreign Service), he served in Vietnam from 21 November 1970 through to 20 November 1971
* item 38 (Record of Assignments), no evidence of him being hospitalized in a patient status at any time
* item 38, he was assigned to –

* Headquarters and Headquarters Company, 2nd Battalion, 12th Infantry Regiment, 25th Infantry Division from 29 November to 21 December 1970
* Company E, 2nd Battalion, 12th Infantry Regiment, 25th Infantry Division from 22 December 1970 to 5 April 1971
* 128th Assault Helicopter Company, 11th Combat Aviation Battalion from 6 April to on or about 20 November 1971

* Item 38, he received all "excellent" conduct and efficiency ratings
* item 40 (Wounds), no entry (blank)
* item 41 (Awards and Decorations), no award of the Purple Heart 

4.  His service record does not contain orders that show he was awarded the Purple Heart.

5.  There is no evidence of any derogatory or disciplinary actions against the applicant or a commander's disqualification that would have precluded him from being awarded the first award of the Army Good Conduct Medal.

6.  Special Orders Number 260, issued by Headquarters, 11th Combat Aviation Battalion (CAB), dated 17 September 1971, reassigned him to the U.S. Army Transfer Station, Oakland for separation processing.

7.  On 20 November 1971, he was honorably REFRAD as an overseas returnee.  He completed 2 years, 9 months, and 14 days of total active service with no days of time lost.  He provided a copy of his DA Form 1811 that shows he was REFRAD with a physical profile of 111111, indicating he possessed a high level of medical fitness.

8.  The DD Form 214 he was issued at the time shows he was awarded or authorized the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Vietnam Service Medal
* Army Commendation Medal
* Combat Infantryman Badge

9.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.

10.  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 orders for the Purple Heart pertaining to the applicant.

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

12.  Army Regulation 600-8-22, paragraph 2-13, 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 two campaigns:

* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971)
* Consolidation I (1 July - 30 November 1971)

13.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal 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.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Paragraph 6d states that Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam, and its subordinate units, during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received the Purple Heart while he was in the 93rd Evacuation Hospital.  However, his service record is void of orders that show he was awarded the Purple Heart or any medical documents that show he was wounded as a result of hostile action.  In addition, his name is not listed on the Vietnam casualty listing.

2.  By regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded in action, the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  In the absence of evidence that shows he was wounded or injured as a result of hostile action, there is an insufficient evidentiary basis upon which to base award of the Purple Heart in this case.

3.  The evidence of record does not show the applicant was disqualified from receiving the first award of the Army Good Conduct Medal for the period 7 February 1969 through 20 November 1971.  He was promoted to SP5/E-5 and he received all "excellent" conduct and efficiency ratings throughout his service.  Therefore, it would be appropriate at this time to award him the first award of the Army Good Conduct Medal and to correct his DD Form 214 to show this award.

4.  All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his DD Form 214 should be corrected to show this unit award.

5.  The applicant participated in two campaigns during his service in Vietnam.  Therefore, he is entitled to two bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show these bronze service stars.
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 Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (1st Award) for the period 7 February 1969 through 20 November 1971; and

	c.  adding to his DD Form 214 the:

* Army Good Conduct Medal
* Vietnam Service Medal with two bronze service stars
* 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 correcting his DD Form 214 to show 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)                                         AR20110019775



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ABCMR Record of Proceedings (cont)                                         AR20110019775



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