IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110021485 


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 and the Bronze Star Medal (BSM) with "V" Device. 

2.  He states he was wounded as a result of enemy action in Vietnam and he also displayed heroism during the same enemy attack.  He adds that other Soldiers in his unit were awarded the Purple Heart and BSM with "V" Device for the same event; however, he was not. 

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* four self-authored statements
* two personal witness statements

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.  He enlisted in the Regular Army on 8 February 1967.  After completion of training, he served in military occupational specialty 11D (Armored Reconnaissance Specialist). 

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the following information:

* Item 31 (Foreign Service) – he served in Vietnam from 8 July 1967 through 7 July 1968
* Item 38 (Record of Assignments) – he was hospitalized on 17 May 1968 during his tour in Vietnam
* Item 40 (Wounds) – does not show he received any wounds
* Item 41 (Awards and Decorations) – is void of the Purple Heart and BSM with "V" Device

4.  On 6 February 1970, he was honorably released from active duty after completing 2 years, 11 months, and 29 days of net active service.  His DD Form 214 does not show he was awarded the Purple Heart or BSM with "V" Device. 

5.  The applicant's name does not appear on the Vietnam casualty roster.

6.  His military medical records are not available for review nor does his military personnel record contain any documentation which shows wounds he received in action or a scenario of his heroic efforts during the stated enemy attack. 

7.  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 awarding him the Purple Heart or BSM with "V" Device.

8.  He provided four self-authored statements and two personal witness statements.  

	a.  The applicant states, in effect, that he arrived in An Khe, Vietnam in August 1967.  He was attached to D Troop, 1st Battalion, 9th Cavalry, 1st Cavalry Division (Airmobile).  His unit performed many combat missions in which he sustained various attacks from the enemy.  During the Tet Offensive, his unit was attacked with mortar rounds and rockets for 25 days straight.  Between February and March 1968, while stationed at Camp Evans, his unit was severely attacked one night in which he was the only survivor of 14 Soldiers.  

	b.  During the rocket attack, he was having severe pains and cramping in his stomach.  He also has pieces of shrapnel in his back from the rocket attack.  He was medically evacuated out of Vietnam and underwent surgery for appendicitis and remained in the hospital in Japan for 32 days.  He was placed on convalescent leave and then transferred to Fort Knox, KY.  

	c.  His first sergeant submitted recommendations for award of the BSM with "V" Device for all the Soldiers involved in the rocket attack, but he was awarded two Army Commendations Medals instead. 

	d.  Mr. HEH states he served with the applicant in Vietnam and they were both exposed to heavy shelling, rocket attacks, and small arms fire from the enemy.  He and the applicant both witnessed their mortar platoon being killed during a rocket attack. 

	e.  During one attack from enemy forces, the weapon he and the applicant were firing had a devastating back blast which caused hearing loss and tinnitus for which he receives treatment from the Department of Veterans Affairs.  He is sure that the applicant must have the same medical conditions that he does.  

   f.  Mr. HEH also contends that both he and the applicant were awarded the BSM in connection with military operations against hostile forces.  He received his citation after returning home; however, the applicant never received his.  
   
9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Purple Heart is awarded for a wound sustained 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 medical treatment, and the medical treatment must have been made a matter of official record.

	b.  The BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  
	c.  The bronze “V” device indicates acts of heroism involving conflict with an armed enemy.  The device is authorized in conjunction with award of the BSM.  

10.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  His request for correction of his records to show award of the Purple Heart and BSM with "V" device was carefully considered; however, it is not supported by the available evidence of record.

2.  The applicant’s claim that he sustained fragment wounds to his back during a rocket attack is not supported by the available evidence.  His record does corroborate his claim of being hospitalized during his tour in Vietnam.  Without an official medical report which confirms that he was wounded as a result of hostile action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

3.  While the available evidence is insufficient for awarding the applicant a BSM with "V" device, this in no way affects his right to pursue his claim for the BSM with "V" device by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

4.  In view of the foregoing, there is an insufficient basis on which to grant the requested relief.

5.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __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)                                         AR20110021485



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021485



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1