IN THE CASE OF:	  

		BOARD DATE:	    12 June 2012

		DOCKET NUMBER:  AR20120000249 


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 records to show he was awarded the Purple Heart and Bronze Star Medal (BSM).

2.  The applicant states he was wounded by hostile fire on 23 May 1970 when he received shrapnel wounds to his upper left thigh and ankle.  He states his hooch-mate was killed by a rocket-propelled grenade a few feet away from him – he tried to assist him with no success.  The first sergeant told him that he had been submitted for a Purple Heart and BSM.  He believes the company clerk redirected the awards to himself.  He has some of the clerk's orders misfiled in his records.

3.  The applicant provides a one-page statement explaining his application and copies of his DD Form 214 (Armed Forces of the United states Report of Transfer or Discharge), an unsigned DA Form 638 (Recommendation for Award) recommending him for award of the Army Commendation Medal (ARCOM), and a Department of Veterans Affairs Statement of Claim.

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 30 September 1969 for a period of 2 years.  He completed basic training at Fort Lewis, Washington, and advanced individual training as a cannoneer at Fort Sill, Oklahoma, before being transferred to Vietnam on 5 March 1970 for assignment to Battery B, 2d Battalion, 320th Artillery Regiment, 101st Airborne Division (Airmobile), for duty as a cannoneer.  On 31 July 1970, he was assigned the duties of cook's helper.

3.  After serving in three campaigns, he departed Vietnam for assignment to Fort Rucker, Alabama, for duty as a prime mover driver and assistant gunner.  He remained at Fort Rucker until he was honorably released from active duty (REFRAD) on 29 September 1971 due to the expiration of his term of service.  He completed 2 years of active service and his DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal (VSM), Republic of Vietnam (RVN) Campaign Medal with Device (1960), ARCOM, and Marksman Marksmanship Qualification Badge with Rifle and Automatic Rifle Bars.

4.  The applicant's medical records are not present for review by the Board; however, a review of the applicant's official records failed to show any indication that the applicant had been wounded or injured in Vietnam or that medical treatment for such wounds/injuries were made a matter of record.  Additionally, the applicant's name is not contained on the Vietnam casualty listing.

5.  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 for the Purple Heart.

6.  However, his official records contain a copy of General Orders Number 66 issued on 3 January 1971 by Headquarters, 101st Airborne Division, awarding him the BSM for meritorious service during the period 1 April to 31 December 1970.

7.  His official records also show he had "excellent" conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

8.  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.  This pamphlet shows the applicant's unit was awarded the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation during the period he was assigned to the unit.

9.  Army Regulation 600-8-22 (Military Awards) states 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the 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.

11.  Army Regulation 600-8-22 states a bronze service star based on qualifying service for each campaign listed in appendix B will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was wounded in Vietnam is not in question, there is no evidence in the available records and he has not provided any evidence to support his contention which is necessary to establish his entitlement to award of the Purple Heart.  In the absence of evidence to show he was wounded as a result of enemy action and that treatment was made a matter of official record, there appears to be no basis to award him the Purple Heart at this time.

2.  However, the evidence of record does contain orders which show he was awarded the BSM for meritorious service and this award should be added to his DD Form 214 at this time.

3.  The applicant participated in three campaigns while serving in Vietnam.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded VSM and correction of his DD Form 214 to show three bronze service stars.

4.  The evidence of record also shows the applicant's unit was subsequently awarded the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  Accordingly, he is entitled to have these unit awards added to his DD Form 214 at this time.

5.  A review of the applicant's records shows he had "excellent" conduct and efficiency ratings throughout his period of service and his records contain no derogatory information that would serve to disqualify him for the first award of the AGCM.  Therefore, it appears that the failure to award him the first award of the AGCM was the result of an administrative error.  Accordingly, he should be awarded the AGCM (1st Award) for the period 30 September 1969 to 29 September 1971 and his DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* awarding him the AGCM (1st Award) for the period 30 September 1969 to 29 September 1971
* deleting award of the VSM from his DD Form 214
* adding award of the BSM, AGCM (1st Award), VSM with three bronze service stars, RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation to his DD Form 214

2.  The Board further determined 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.  The Board wants the applicant and all others to know the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  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)                                         AR20120000249



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ABCMR Record of Proceedings (cont)                                         AR20120000249



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