IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004508 


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 request award of two Purple Hearts and the Silver Star.

2.  The applicant states he served with the 1st Battalion, 8th Cavalry, in Vietnam from 1966 to 1967 and he was wounded and hospitalized on two separate occasions. In each case, he was promised the Purple Heart, but he never received any.  He was hit by an enemy grenade fragment and by friendly fire.  The friendly fire incident occurred when he was hit in the head by a fragment from a battle ship that was firing on an enemy position.  The fragment first hit a tree, ricocheted off, and hit him in the head just above his eye.  He has had problems over the past 40 years because of this head wound.

3.  He also states that as far as the Silver Star, he believes this was another unjust situation.  Two guys did the same thing; one killed an enemy soldier and got the Silver Star.  The other took a trail but did not encounter the enemy.  He did not get anything.  He believes the Silver Star is awarded based on the actions, not based on killing the enemy.  For whatever reason, it was not equal treatment.

4.  The applicant did not provide any 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 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's records show he enlisted in the Regular Army on 11 January 1966 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Vietnam with the 1st Battalion, 8th Cavalry Regiment, 1st Cavalry Division, from on or about 14 July 1966 to on or about 12 July 1967.

4.  He was honorably released from active duty on 20 December 1968 and he was transferred to the U.S. Army Reserve to complete his remaining service obligation.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Campaign Medal
* Vietnam Service Medal 
* Combat Infantryman Badge

5.  There is nothing in six typical sources that indicate he was awarded a Silver Star or Purple Heart.

* item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not list a wound or an injury
* item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart or the Silver Star
* his name is not listed on the Vietnam casualty roster
* his medical records are not available for review with this case
* there are no official orders in his records that show he was awarded a Silver Star or a Purple Heart
* a review of the U.S. Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders for the Silver Star or Purple Heart

6.  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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.  Award of the Purple Heart is also authorized to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

	b.  The Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

7.  Title 10, U.S. Code, section 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.

8.  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.  With respect to the applicant's request for award of two Purple Hearts:

	a.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify the injury or wound was the result of hostile action, the injury or 

wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of enemy action.  His name is not listed on the Vietnam casualty roster and his DA Form 20 does not indicate he received a combat related wound.  Additionally, his medical records which are necessary to confirm that he was wounded and treated are not available for review with this case.

	c.  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 insufficient evidence upon which to base award of the Purple Heart in this case.

2.  With respect to the applicant's request for award of the Silver Star:

	a.  The third highest award for valor is the Silver Star which requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  However, the governing Army regulation states that for personal decorations (which include the Silver Star) formal recommendation, approval through the chain of command, and announcement in orders are required.  There is no evidence in his records and he provides none to describe what he did that demonstrated gallantry in action against the enemy.

	b.  Nevertheless, while the available evidence is insufficient for awarding him the Silver Star, this in no way affects his right to pursue his claim for the Silver Star 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________________________
                 CHAIRPExRSON
      
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)                                         AR20120004508



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ABCMR Record of Proceedings (cont)                                         AR20120004508



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