IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120005382 


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, in effect, award of the Purple Heart, Air Medal, and a second Army Commendation Medal.

2.  The applicant states that while on patrol, the Soldier in front of him tripped a landmine knocking him to the ground and breaking the shoulder strap on his radio pack.  He refused the dust-off, obtained another pack, and completed the mission.  He claims he suffered from ringing in his ears and received a field dressing upon returning to base camp.  He was not allowed back into the field for 10 days.  He further states he subsequently filed claims for hearing loss but was turned down, although he was later told he needed hearing aids by a Department of Veterans Affairs (VA) doctor.  He states he has submitted paperwork to the VA in Poplar Bluff, MO, and was recently notified and received compensation for exposure to Agent Orange.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a doctor at the VA Hospital in Poplar Bluff, MO, as counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement.

3.  Counsel provides no 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 record shows he enlisted in the Regular Army on 28 June 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 31G (Tactical Communications Chief).  The highest rank/grade he attained while serving on active duty was sergeant/
E-5.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 13 May 1969 through 14 April 1970.  He was assigned to Company B, 2nd Battalion, 14th Infantry.  Item 40 (Wounds) is blank.  Item 41 (Awards and Decorations) does not show award of the Purple Heart or Air Medal.

4.  On 25 June 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars 
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal

5.  The applicant's Army Military Human Resource Record contains no medical records showing he was wounded in action or treated for a wound received as a result of enemy action.

6.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam casualty roster.  The applicant's name is not included on this roster.
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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart, Air Medal, or an additional Army Commendation Medal.

8.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.

	a.  Paragraph 2-8 contains guidance on the Purple Heart.  It states the Purple Heart is awarded to members wounded in action and states that in order to award the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

	b.  The Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly; for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	c.  The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  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.  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.  The applicant's request for award of the Purple Heart, Air Medal, and a second Army Commendation Medal was carefully considered.  It was determined that there is insufficient evidence to support this request.

2.  In order to support award of the Purple Heart, the member must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action.  The wound must have required medical treatment by military medical personnel and this medical treatment must have been made a matter of official record.

3.  Agent Orange was only employed by U.S. Forces in Vietnam and not by the enemy.  Therefore, its use cannot be construed as a hostile action on the part of the enemy and exposure to Agent Orange cannot be considered as a basis for award of the Purple Heart.

4.  The applicant's service in the Republic of Vietnam is not in question.  Additionally, the applicant's sincerity is not in question.  However, his record contains no medical treatment records or other documents which confirm he was wounded as a result of enemy action or treated for a combat-related wound or injury while serving in the Republic of Vietnam.  The regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant the Purple Heart.

5.  With respect to the Air Medal, there is no available evidence in the applicant's record nor did he provide any evidence showing he was recommended for or awarded the Air Medal.  Therefore, he is not entitled to award of the Air Medal.

6.  The applicant's records do not contain nor did he provide evidence which shows he was ever recommended for or awarded an Army Commendation Medal other than the one which currently resides in his records.  Therefore, he is not entitled to award of a second Army Commendation Medal.

7.  Although there is insufficient evidence on which to base award of the Air Medal and an additional Army Commendation Medal, this in no way precludes his right to pursue his claim for these awards 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.



      __________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)                                         AR20120005382



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ABCMR Record of Proceedings (cont)                                         AR20120005382



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