IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110024889 


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 two awards of the Purple Heart and three awards of the Bronze Star Medal.

2.  The applicant states, in effect, he should be awarded one Purple Heart for exposure to Agent Orange in Vietnam in March 1969 and one Purple Heart for being exposed to hepatitis B as a medic in January 1972.

3.  He further states he should be awarded three Bronze Star Medals for going above and beyond the call of duty during his service with the 93rd Evacuation Hospital in Vietnam from 1968 to 1969 and two Bronze Star Medals for going above and beyond the call of duty during his service with the U.S. Army Hospital in Saigon, Vietnam from 13 June 1972 to 29 December 1972.  He was told by two officers that he would receive these awards.

4.  The applicant provides:

* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 17 May 1969
* His DD Form 214 for the period ending 12 April 1973
* A letter from the Department of Veterans Affairs (DVA), dated
12 December 2011
* His Social Security card
* A Veterans Universal Access Identification card


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 (RA) on 26 May 1966 for a period of 3 years.  He completed training and he was awarded military occupational specialty (MOS) 91D (Operating Room Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) for this period of service shows he was assigned to the 5th Medical Field Hospital in Thailand from
12 February 1967 to 11 August 1968 and to the 93rd Evacuation Hospital in Vietnam from 31 August 1968 to 15 May 1969.

4.  He was honorably released from active duty on 17 May 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He attained the rank/grade of specialist five (SP5)/E-5 during this period of service.  The DD Form 214 he was issued at the time does not list the Purple Heart.

5.  On 28 January 1971, he again enlisted in the RA for a period of 3 years in the rank/grade of SP5/E-5 in MOS 91D.

6.  His record contains several medical documents that indicate he was in an automobile accident in August 1970.  It appears he suffered injuries to his back as a result of this accident.  His medical record further indicates he received treatment for this injury at various military hospitals from 1971 through the end of 1972.

7.  His DA Form 20 for this period shows he was assigned to the U.S. Army Hospital in Saigon from 21 June 1972 to 29 December 1972, at which time he departed Vietnam in a patient status en route to Wright-Patterson Air Force Base Medical Center, OH.

8.  On 13 April 1973, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 9, for a physical disability that existed prior to service.  The DD Form 214 he was issued for this period of service does not list the Purple Heart. 

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

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 United States Army Human Resources Command, failed to reveal any orders for any Purple Heart or Bronze Star Medal pertaining to the applicant.

11.  There is also no evidence in the typical sources that confirm he was wounded as a result of hostile action and/or treated for a combat injury or wound:

* Item 40 (Wounds) of his DA Forms 20 do not reflect a combat wound or injury
* Item 41 (Awards and Decorations) of his DA Forms 20 do not show award of any Purple Hearts
* His medical records do not contain evidence of any combat injury received as a result of hostile action by the enemy

12.  Agent Orange is one of the herbicides and defoliants used by the U.S. military as part of its herbicidal warfare program, Operation Ranch Hand, during the Vietnam War from 1961 to 1971.  The U.S. military sprayed the chemical herbicides and defoliants in Vietnam, eastern Laos, and parts of Cambodia, as part of the aerial defoliation program.  

13.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, Army Good Conduct Medal, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and trophies, and similar devices awarded in recognition of accomplishments.  It states:

	a.  The Purple Heart is awarded for a wound sustained while in action against and 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.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows: frostbite or trench foot injuries, heat stroke, food poisoning not caused by enemy agents, chemical, biological, or nuclear agents not released by the enemy, battle fatigue, disease not directly caused by enemy agents, accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action, self-inflicted wounds, except when in the heat of battle and not involving gross negligence, post traumatic stress disorders, and jump injuries not caused by enemy action.

	b.  The Bronze Star Medal 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 n 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.  

14.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  It stated the Bronze Star Medal may have been awarded for heroism or for meritorious achievement or service which did not involve aerial flight but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  The approval authority for award of the Bronze Star Medal was generally delegated no lower than brigadier generals in command of separate brigades.  However, the records of the Awards Branch of the U.S. Army Human Resources Command show that authority for award of the Bronze Star Medal for service had been delegated to colonels in command of the U.S. Army Support Commands located at Saigon, Cam Ranh Bay, and Qui Nhon and in command of separate engineer brigades in Vietnam assigned to the U.S. Army Engineer Troops (Provisional).

15.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

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

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of hostile enemy action.  His name is not listed on the Vietnam casualty listing and his DA Form 20 does not indicate he received a combat-related wound.  Additionally, his medical records do not indicate he was injured as a result of combat.

3.  Notwithstanding the applicant's contention and his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis upon which to base award the applicant any Purple Hearts in this case.

4.  There is also no evidence of record and the applicant did not provide any evidence that shows he was recommended for or awarded any Bronze Star Medals during his service in Vietnam.  As a result, there is no basis for granting this portion of his request.

5.  While the available evidence is insufficient for awarding the applicant any Bronze Star Medals, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medals by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

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)                                         AR20110024889



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ABCMR Record of Proceedings (cont)                                         AR20110024889



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