IN THE CASE OF: 

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20130014209 


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 correction of his records to show:

	a.  award of the Purple Heart, Army Good Conduct Medal, and Vietnam service medals; and

	b.  payment of $1,700 from his savings program.

2.  The applicant states:

* he was wounded in the head by mortar fragments hours before being sent home on an emergency permanent change of station at the end of April 1969
* it took 4 days to leave Vietnam and he was supposed to be gone in 12 hours
* he did not receive the Army Good Conduct Medal and he had no Article 15, Uniform Code of Military Justice, or anything else from 19 June 1966 to 19 June 1969 and he was in the military 4 years
* he enrolled in a 10 percent savings plan while in Vietnam around 12 June 1968
* he forgot about the savings plan at the time of his discharge and when he received a Government check for $1,700 he returned it thinking a mistake had been made and it was the right thing to do
* it was 20 years or more before he realized what the check was for and his efforts to get the money back were useless
* he was dealing with a very bad case of post-traumatic stress disorder
* he was told by a major he would receive the Purple Heart in the United States
* he does not have a lot of time left and he wants what is owed to him before he dies
* his kidneys are failing and he has diabetes and a heart artery aneurysm that the prison medical staff did not tell him about
* the prison refuses to do anything about anything

3.  The applicant provides:

* self-authored statements
* photograph

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 enlisted in the Regular Army on 20 June 1966.

3.  Special Orders Number 225, issued by Headquarters, 107th Transportation Brigade, dated 11 October 1967, awarded him the 1-Year Safe Driver Badge with Driver-W Bar (now known as the Driver and Mechanic Badge with Driver-W Bar).

4.  He served in Vietnam from 11 June 1968 to 2 May 1969.  While in Vietnam, he was assigned to:

* 528th Quartermaster Company, 15 June 1968 to 13 February 1969
* 13th Aviation Battalion, 14 February 1969 to 3 March 1969
* 336th Aviation Company, 4 March 1969 to 14 April 1969
* 528th Quartermaster Company, 15 April 1969 to 30 April 1969

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 29 (Qualification In Arms) – Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Machinegun Bar (M-60), Grenade Launcher Bar (M-79), and Pistol Bar (.45 caliber) 
* Item 38 (Record of Assignments) – “excellent” conduct and efficiency ratings except for a period of less than 30 days with unknown markings

6.  On 19 June 1970, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).  His DD Form 214 shows award of the:

* National Defense Service Medal
* Vietnam Service Medal with 3 [bronze] service stars
* Vietnam Campaign Medal with Device (1960)

7.  The applicant provides self-authored statements and a photograph he identifies as himself.  The photograph is a male with a bandaged head holding two dogs.

8.  There is no evidence of any derogatory information or a commander's disqualification that would have disqualified the applicant from being recommended for or awarded the first award of the Army Good Conduct Medal.  

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows that while he was assigned, the 528th Quartermaster Company was cited for award of the Meritorious Unit Commendation for the period 11 January 1968 through 31 May 1969 by Department of the Army General Order (DAGO) Number 39, dated 1970.

10.  Army Regulation 672-3, paragraph 6d states DAGO Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam, and its subordinate units, during the period 20 July 1965 to 28 March 1973.

11.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  There is also nothing in the typical sources below that show he was wounded and/or injured as a result of hostile action:

	a.  Item 38 of his DA Form 20 does not show he was ever in a patient status.

	b.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

	d.  His name is not shown on the Vietnam casualty listing.  This is a microfiche listing of Vietnam Era casualties that is used to verify entitlement to the Purple Heart.

12.  Army Regulation 600-8-22 (Military Awards) states 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 that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

13.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all “excellent” conduct and efficiency ratings.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

14.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served honorably during the period 20 June 1966 through 19 June 1969.  He received all "excellent" conduct and efficiency ratings throughout his period of service with no disciplinary actions or a commander's disqualification.  Therefore, it would be appropriate to award him the Army Good Conduct Medal (1st Award) and to correct his DD Form 214 to show this award.

2.  He was assigned to a unit in Vietnam that was cited for award of the Meritorious Unit Commendation; therefore, he is entitled to correction of his DD Form 214 to show this unit award.

3.  General orders awarded Headquarters, U.S. Army Vietnam and its subordinate units the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period 20 July 1965 to 28 March 1973; therefore, he is entitled to correction of his DD Form 214 for the period ending 30 November 1972 to show this unit award.

4.  Records show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Machinegun Bar (M-60), Grenade Launcher Bar (M-79), and Pistol Bar (.45 caliber); therefore, he is entitled to correction of his DD Form 214 to show these badges.

5.  Special orders awarded him the Driver and Mechanic Badge with Driver-W Bar; therefore, he is entitled to correction of his DD Form 214 to show this badge.

6.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, that the injury/wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.

7.  Although he provides a photograph of himself with head bandages, this evidence is insufficient to show he was wounded as a result of hostile action and he fails to provide medical documentation for treatment received wounds received as a result of hostile action.

8.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of 


record, there is insufficient evidence upon which to base award of the Purple Heart in this case.

9.  In regard to payment of $1,700 from his savings program, unfortunately after more than 40 years it is not known what he may have been due or whether or not he was ever paid it.  An arbitrary ruling in his favor, without knowing what his finance records would have shown, would cause prejudice to the Government and the doctrine of laches is invoked in his case.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 Army Good Conduct Medal (1st Award) for the period 20 June 1966 through 19 June 1969; and

	b.  adding to his DD Form 214 the:

		*	Army Good Conduct Medal
		*	Meritorious Unit Commendation
		*	Republic of Vietnam Gallantry Cross with Palm Unit Citation
*	Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Machinegun Bar (M-60), Grenade Launcher Bar (M-79), and Pistol Bar (.45 caliber)
*	Driver and Mechanic Badge with Driver-W Bar

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 Purple Heart and payment of $1,700.



      _________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)                                         AR20130014209



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ABCMR Record of Proceedings (cont)                                         AR20130014209



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