BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006909 


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 two applications, that the record of his deceased father, a former service member (FSM), be corrected to award him the Silver Star (SS) and Purple Heart (PH) posthumously.

2.  The applicant states:

	a.  Upon the FSM's return home from his first tour in Vietnam in 1968, the FSM told him he was hit in the chest with a punji-stick shot from a crossbow, tripped by another Soldier while they were on patrol.

     b.  The FSM also said he turned completely black from the poison on the point of the projectile and was medically evacuated to a hospital in Japan where he remained for a month.

     c.  He is the FSM's eldest son and personally knows of the injuries the FSM sustained, both in 1967 and again in 1970.

     d.  He saw a letter recommending the FSM for award of the SS for valor, which showed:

* it was written by his colonel and described the FSM's actions during a rocket attack when he was wounded
* despite the FSM's injuries, he saved an unconscious fellow Soldier by carrying him on his back to a bunker
* the FSM was wounded by the shrapnel from the exploding rockets
* he never knew what happened or if the FSM was ever awarded his medals because he got married and left home in 1972
* he is attempting to get the FSM's awards issued for his grand and great-grand children.

3.  The applicant provides:

* DA Form 20 (Enlisted Qualification Record) (pages 3 and 4 only)
* WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) issued  7 January 1948
* DD Form 214 (Report of Separation from the Armed Forces of the United States) (four separate documents issued 10 September 1953, 30 March 1959, 12 May 1970, and 16 August 1974)
*  a self-authored statement
* Marriage License
* Certificate of Birth
* National Personnel Records Center (NPRC) Letter dated 23 August 2002
* a www.locategrave.org  internet document

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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the FSM's reconstructed NPRC file, WD AGO Form 53-55, and the four DD Forms 214 the applicant provides.

3.  The FSM initially enlisted in the Regular Army on 10 September 1946.  He was trained in and awarded military occupational specialty 965 (Automotive Mechanic).
4.  The FSM's separation documents confirms he intermittently served in the RA during the following periods:

* 10 September 1946 – 7 January 1948
* 9 September 1950 – 10 September 1953
* 9 February 1959 – 30 March 1959
* 27 November 1965 – 12 May 1970
* 13 May 1970 – 16 August 1974

5.  Item 40 (Wounds) of his DA Form 20 is blank.   The SS and PH are not included among the list of awards shown in item 41 (Awards and Decorations).

6.  The FSM's NPRC file contains no general orders or any other documents to show he was ever recommended for or awarded the SS or PH.  It also does not contain any evidence to show he was ever wounded in action or treated for a combat related wound.

7.  On 16 August 1974, the FSM was retired from the RA after completing 20 years, 5 months, and 6 days of creditable active duty service.

8.  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 United States Army Human Resources Command, failed to reveal any orders for the SS or PH pertaining to the applicant.

9.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam Casualty Roster.  There is no entry pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.

	a.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states the PH is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action and must have been made a matter of official record.

	b.  Paragraph 3-11 states the SS 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.

11.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's record is void of any evidence and the applicant has not provided any evidence that shows the FSM was ever recommended for or awarded the Silver Star or Purple Heart.  Absent any documentary evidence to show he met the necessary criteria for either of these awards, there is an insufficient evidentiary basis to grant the requested relief in this case.

2.  While the available evidence is insufficient for awarding the FSM the SS, this in no way affects the applicant’s right to pursue this claim for this award by submitting a request through the FSM's 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 that 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)                                         AR20130004737



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ABCMR Record of Proceedings (cont)                                         AR20130006909



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