IN THE CASE OF:	  

		BOARD DATE:  1 April 2014

		DOCKET NUMBER:  AR20130013844 


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 that his records be corrected by showing he was awarded the Purple Heart and two awards of the Air Medal.

2.  The applicant states he was wounded in Vietnam on 10 May 1970 when his ear drums were blown out during an enemy attack on Whiskey Mountain where his unit was located.  In November 1970, he received shrapnel wounds from a rocket propelled grenade attack in Phan Thiet.  He was also awarded two Air Medals as a result of flying the appropriate number of missions; however, the records validating the awards were compromised at Nha Trang when a CONEX container took a direct hit and when the fire occurred at St. Louis, MO. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his personal flight log; an authorization for anesthesia for removal of a foreign object over his right eye in September 1974; his Report of Medical History, dated in 1993; a constituent authorization form; and a DA Form 2496 (Disposition Form), dated 13 December 1979.

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 commissioned as an Engineer Corps second lieutenant upon graduation from the United States Military Academy at West Point, New York on 7 June 1967.

3.  On 9 January 1970, he was serving as a captain when he was transferred to Vietnam for an initial assignment to the 864th Engineer Battalion.  He was subsequently assigned to the 73rd Engineer Company as the commander.  He departed Vietnam on 20 December 1970.

4.  He continued to serve on active duty until he was honorably discharged in the rank of major on 30 September 1981.  He had served 14 years, 3 months, and 24 days of active service and his DD Form 214 issued at the time of his discharge shows that he was awarded the Meritorious Service Medal, Bronze Star Medal with 1 Oak Leaf Cluster (OLC), Army Commendation Medal with
2 OLCs, Joint Service Commendation Medal, National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal, Humanitarian Service Medal, Parachutist Badge, Ranger Tab, Meritorious Unit Commendation, Republic of Vietnam Civil Actions Medal Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Army Service Ribbon, and the Overseas Service Ribbon with Numeral “1.” 

5.  The applicant accepted an appointment as a USAR major on 4 October 1981.  He received his 20-Year letter on 5 May 1990 and served in the USAR until he was placed on the Army of the United States (AUS) Retired List in the rank of colonel on 3 May 2006.

6.  A review of his official records failed to show any evidence of the applicant being wounded in Vietnam and his name is not contained on the Vietnam Casualty Listing.  Additionally, there are no official flight records contained in his official records and no orders awarding him a Purple Heart or Air Medal.

7.  The documents submitted by the applicant consist of a personal flight log apparently made by the applicant for the period 3 January to 11 November 1970.  The Authorization for Administration of Anesthesia submitted by the applicant is dated 5 September 1974 and indicates it was being administered for removal of a foreign object over the right eye.  The DA Form 2496 dated 13 December 1979 is a handwritten document requesting a search be made of documents authorizing him award of the Purple Heart and the Air Medal with 1 OLC.

8.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that 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.

9.  Army Regulation 600-8-22 states 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.

10.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided guidelines for award of the Air Medal.  It stated passenger personnel who did not participate in an air assault were not eligible for the award based upon sustained operations.  It defined terms and provided guidelines for the award based upon the number and types of missions or hours.  Twenty-five Category I missions (air assault and equally dangerous missions) and accrual of a minimum of 25 hours of flight time while engaged in Category I missions was the standard established for which sustained operations were deemed worthy of recognition by an award of the Air Medal.  However, the regulation was clear that these guidelines were considered only a departure point.  

11.  USARV Regulation 672-1 provided guidelines for award of the Air Medal for sustained operations.  Appendix IV required that recommendations for award of the Air Medal for crewmembers or non-crewmembers on flying status would be submitted on USARV Form 157-R.  The recommendation for award must also have stated that the individual “met the required number of missions and hours for award of the Air Medal”; that “the individual has not caused, either directly or indirectly, an aircraft abort, late take-off, accident or incident”; and that the “individual’s accomplishments and service throughout the period have reflected meritorious performance, with no instance of nonprofessionalism, mediocrity, or failure to display an aggressive spirit.”


12.  The 1973 fire at the National Personnel Records Center destroyed records of individuals serving during the period 1919 – 1953. 

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was awarded the Purple Heart and Air Medal 1OLC is not in doubt, he has failed to provide sufficient evidence to show that such was the case.

2.  The personal flight log is not sufficient to establish the applicant’s entitlement to award of the Air Medal and there is no other evidence contained in his official records to establish his eligibility for award of the Air Medal or to add it to his records.  

3.  Additionally, there is no evidence to show that he sustained a wound or injury as a result of enemy action or that treatment for such wounds/injuries was made a matter of record.  Therefore, in the absence of such evidence there appears to be no basis to award him the Purple Heart or to add it to his DD Form 214. 

4.  Therefore, in the absence of sufficient evidence to show he meets the criteria for award of the Purple Heart and/or Air Medal 1OLC, there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  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)                                         AR20130013844



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ABCMR Record of Proceedings (cont)                                         AR20130013844



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