IN THE CASE OF:	  

		BOARD DATE:  7 February 2013

		DOCKET NUMBER:  AR20120013064 


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 and Korean Service Medal (or Korea Defense Service Medal) and issuance of the medals.

2.  He states:

	a.  He served with Headquarters and Headquarters Company (HHC), 2nd Brigade, 7th Infantry Division, in Korea from April 1964 to March 1965.  This service entitles him to award of the Korean Service Medal; however, the award was not authorized until after his retirement; therefore, it was never issued.  This assignment should be noted in his service record.

	b.  While serving in Vietnam, he was blown off his feet and deafened by an explosion during a night attack.  At the time, he was involved in multiple combat actions and placed no particular importance in the injury, especially as his hearing gradually returned.  However, he recently suffered a complete hearing loss in his right ear and a generally severe hearing impairment.

	c.  As a result of this combat action he was awarded the Bronze Star Medal with "V" Device and the narrative documents his claim.  His injury was further documented by a DA Form 3349 (Medical Condition – Physical Profile Record), dated 2 October 1970.

	d.  On 28 November 2011, he filed a claim with the Department of Veterans Affairs (VA) for a combat-related injury he incurred while serving in Vietnam.  The audiology examination showed he sustained scarring of his inner ear canal which caused the hearing loss.  He didn't know he had incurred an internal injury until he received a VA-directed audiology examination as a result of filing a VA claim.

3.  He provides copies of his Bronze Star Medal with "V" Device orders and DA Form 3349.

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 military record shows he enlisted in the Regular Army (RA) on 25 September 1963.  He served in Korea from 9 February 1964 through 4 March 1965.  He was discharged on 27 March 1968 to accept a commission.

3.  He was appointed as a commissioned officer in the U.S. Army Reserve (USAR) and was ordered to active duty.  He entered active duty on 28 March 1968.  He served in Vietnam from 7 May 1969 through 14 May 1970, during four campaigns.  He was assigned to HHC, 2nd Battalion, 8th Infantry, 4th Infantry Division.

4.  General Orders Number 8265 were issued by Headquarters, 4th Infantry Division, on 30 December 1969 awarding him the Bronze Star Medal with "V" Device for heroism in Vietnam on 6 November 1969.  The orders stated the applicant's platoon was stationed at a landing zone when an unknown size Vietnamese force staged a ground attack.  Seeing the need for immediate illumination, the applicant unhesitatingly and with complete disregard for his personal safety, ran to the ammunition bunker and began firing ground illumination fares.  He continued to provide the much needed illumination throughout the contact.  Though knocked down by an exploding B-40 rocket, he maintained effective control of his element until the enemy retreated.

5.  A DA Form 3349, dated 2 October 1970, shows he was diagnosed with a sensorineural hearing loss.  He was found medically qualified for duty with permanent assignment limitations of no assignment involving habitual or frequent exposure to loud noises or firing of weapons (not to include firing for preparation of replacements qualification).

6.  He was honorably released from active duty as a captain on 16 April 1972 and was transferred to the USAR Control Group (Reinforcement).  His DD Form 214 lists his awards as the:

* National Defense Service Medal
* Bronze Star Medal
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Campaign Medal with Device (1960)
* Expert Infantryman Badge
* Bronze Star Medal with "V" Device
* Army Good Conduct Medal
* Vietnam Service Medal
* Air Medal
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation with 1st Oak Leaf Cluster
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Machine Gun Bar (M-60)

7.  There is no evidence he was wounded during his service in Vietnam.  There are no orders in his records authorizing him award of the Purple Heart.

8.  He enlisted in the RA on 17 April 1972.  He served continuously on active duty through several reenlistments until he was honorably retired on 30 September 1993.  His final DD Form 214 lists his awards as the:

* Army Service Ribbon
* National Defense Service Medal (2nd Award)
* Air Medal
* Republic of Vietnam Campaign Medal with Palm
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Bronze Star Medal with "V" Device
* Armed Forces Reserve Medal
* one overseas service bar
* Overseas Service Ribbon (6th Award)
* Noncommissioned Officer Professional Development Ribbon (4th Award)

* Vietnam Service Medal "(4 Awd)"
* Army Good Conduct Medal (8th Award)
* Bronze Star Medal
* Driver and Mechanic Badge with Component Bar
* Army Achievement Medal
* Meritorious Service Medal
* Expert Infantryman Badge
* Combat Infantryman Badge
* Army Lapel Button
* Sharpshooter Marksmanship Qualification Badge with .38 Caliber Bar
* Expert Marksmanship Qualification Badge with .45 Caliber Bar
* Legion of Merit

9.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record – Part II) does not list the Korean Service Medal, Korea Defense Service Medal, or Purple Heart.

10.  The Vietnam casualty listing does not show his name.

11.  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 pertaining to the applicant.

12.  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.

	b.  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.

	c.  The Korean Service Medal is awarded for qualifying service in the theater of operations between 27 June 1950 and 27 July 1954.

	d.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The area of eligibility encompasses all land area of the Republic of Korea and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or 60 nonconsecutive days.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the Korea Defense Service Medal, the evidence shows the applicant served in Korea from 9 February 1964 through 4 March 1965 and completed a qualifying period of service in Korea for award of the Korea Defense Service Medal.  Therefore, it would be appropriate to add this award to his DD Form 214.

2.  With regard to award of the Korean Service Medal, the evidence of record does not show he completed a qualifying period of service in Korea for award of the Korean Service Medal.  Therefore, he is not entitled to this award or its addition to his DD Form 214.

3.  With regard to award of the Purple Heart, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  The documents he provided were carefully considered; however, these documents are insufficient to form a basis for his entitlement to this award.  There is no evidence of record and none was provided by the applicant showing he was wounded by a mortar attack during his service in Vietnam and received medical treatment or that such treatment was made a matter of official record.

4.  Absent corroborating evidence confirming his contention, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, he is not entitled to award of the Purple Heart or to have this award added to his DD Form 214 at this time.

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 adding the Korea Defense Service Medal to applicant's 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 and Korean Service Medal.



      _______ _  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)                                         AR20120013064



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120013064



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1