IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005736 


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 (PH).  He also requests the
awarded Bronze Star Medal (BSM) with "V" Device (First Oak leaf Cluster), the Army Commendation Medal (ARCOM), and the Air Medal (AM) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he suffered wounds and injuries in combat while serving in the Republic of Vietnam (RVN) on 13 May 1969.  His injuries and wounds required surgery and he was hospitalized for 10 days.  He has the original orders and hospital records which entitles him to a PH.

3.  The applicant provides:

* DD Form 214
* General Orders Number 8586 awarding the BSM with "V" Device (First Oak leaf Cluster)
* Untitled personal statement
* Three casualty reports and a note from the Virtual Wall
* General Orders Number 4562 awarding the BSM
* General Orders Number 4869 awarding the ARCOM
* General Orders Number 7422 awarding the AM
* Honorable Discharge Certificate
* DA Form 8-275-3 (Clinical Record Cover Sheet)/Hospital Records


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 was inducted into the Army of the United States on 3 August 1967 and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant served in the RVN during the period 24 November 1968 through 20 July 1969.  

4.  On 26 July 1969, the applicant was honorably released from active duty after serving 1 year, 11 months, and 24 days of total active duty service.  His
DD Form 214 shows the following awards:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Vietnam Campaign Medal (VCM)
* Combat Infantryman Badge (CIB)

5.  The applicant's Official Military Personnel File (OMPF) is void of orders
showing he was awarded the PH or documents indicating he was wounded in
action while serving in the RVN and that he received medical treatment for a combat-related wound.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank, and item 41 (Awards and Decorations) does not list award of the PH.

6.  Review of the Vietnam Casualty Roster fails to show the applicant's name as a casualty.  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 U.S. Army Human Resources Command, failed to reveal any orders for the PH pertaining to the applicant.
7.  The applicant provides an untitled personal statement indicating he was injured by enemy sapper attack and treated for minor wounds by the company medic on 13 May 1969.  He also indicates three of his friends were killed during the attack.  He provides three casualty reports and a note from the Virtual Wall.org website reflecting the casualties on 13 May 1969.

8.  DA Form 8-275-3/hospital records do not show he was treated for any wounds resulting from a combat-related injury on 13 May 1969.  The records show he had surgery on 2 January 1969 to address a noncombat-related medical issue and was discharged from the hospital on 10 January 1969.   

9.  A review of the applicant’s record indicates entitlement to awards and decorations that are not shown on his DD Form 214.

10.  General Orders Number 4562, dated 12 May 1969 awarded him the BSM.

11.  General Orders Number 8586, dated 10 July 1969 awarded him the BSM (First Oak Leaf Cluster) and with "V" Device on 13 May 1969.  However, it does not indicate the applicant was wounded.
 
12.  General Orders Number 4869, dated 19 May 1969 awarded him the ARCOM

13.  General Orders Number 7422, dated 22 June 1969 awarded him the AM.  

14.  Section 4 (Chronological Record of Military Service) of his DA Form 24 (Service Record) shows he received all "excellent" conduct and efficiency ratings throughout his military service with no evidence of derogatory information in his military record.

15.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the AGCM was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

16.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.  It states the PH is awarded to members wounded in action.  It also states
in order to award the PH there must be evidence of the wound for which the
award is being made was received as a result of enemy action, the wound
required treatment by medical personnel, and a record of the medical treatment
was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to award him the PH and the BSM (First Oak Leaf Cluster) and with "V" Device, ARCOM, and AM be added to his DD Form 214 was carefully considered and found to have partial merit.

2.  By regulation, in order to support award of the PH the service 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 medical personnel, and this medical
treatment must have been made a matter of official record.

3.  While the applicant provides medical records that reference medical treatment
in the RVN, they do not show that his treatment was for wounds resulting from 
hostile action.  Further, there are no documents in the applicant's OMPF that indicate he was treated for a combat related wound by medical personnel during his tour of duty in the RVN.  The record shows he had minor surgery for medical issues not combat-related.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied.

4.  General Orders Number 8586, dated 10 July 1969 awarded him the BSM (First Oak Leaf Cluster) and with "V" Device.  Therefore, it would be appropriate to add this award to his DD Form 214.

5.  General Orders Number 4869, dated 19 May 1969 awarded him the ARCOM.  Therefore, it would be appropriate to add this award to his DD Form 214.

6.  General Orders Number 7422, dated 22 June 1969 awarded him the AM.  Therefore, it would be appropriate to add this award to his DD Form 214.

7.  He served honorably from 3 August 1967 through 26 July 1969.  He attained the rank/grade of specialist four/E-4 and received all "excellent" efficiency and conduct ratings throughout his military service.  Lacking any derogatory information on file that would have disqualified him from receiving the first award of the AGCM, it would be appropriate to award the applicant the AGCM.  Therefore, he is entitled to correction of his DD Form 214 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 that the evidence presented was 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:

   a.  awarding him the AGCM 1st award for the period 3 August 1967 through 26 July 1969;  and

   b.  adding to his DD Form 214:

* BSM (First Oak Leaf Cluster) and with 'V" Device
* ARCOM
* AM
* AGCM

2.  The Board further determined that 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 PH.

3.  The applicant and all others concerned should know this action related to award of the PH 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.



      ____________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)                                         AR20120005736



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ABCMR Record of Proceedings (cont)                                         AR20120005736



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