IN THE CASE OF:  

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140005802 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the:

* Army Commendation Medal (ARCOM) with "V" Device
* Combat Infantryman Badge (CIB)
* Purple Heart (PH)

2.  The applicant states, in effect:

* his job in the Army was infantry and this should be sufficient evidence to award him the CIB
* his Department of Veterans Affairs (VA) Rating Decision shows his shrapnel wound and this should be sufficient evidence for awarding him the PH

3.  The applicant provides:

* DD Form 214
* Headquarters, U.S. Army Vietnam, General Orders Number 3128, dated 10 July 1970
* VA Veterans Benefits Award Certificate
* VA Rating Decision and associated correspondence



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 26 May 1969 and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  Orders issued by Headquarters, U.S. Army Training Center, Infantry and Fort Lewis, awarded the applicant the following:

* Special Orders Number 262, dated 19 September 1969 – Expert Marksmanship Qualification Badge with Machine Gun Bar
* Special Orders Number 263, dated 20 September 1969 – Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  On 6 January 1970, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave on or about 4 January 1970 until on or about 5 January 1970.

5.  He served in Vietnam during the period on or about 11 January 1970 through 29 November 1970 where he participated in three campaigns while assigned to:

* Replacement Detachment, Company A, 7th Support Battalion, 199th Infantry Brigade, from 11 January 1970 to 18 January 1970
* Company A, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade, from 19 January 1970 to on or about 25 November 1970

6.  Headquarters, 199th Infantry Brigade, Special Orders Number 47, dated 16 February 1970, awarded the applicant the CIB.

7.  Headquarters, U.S. Army Vietnam, General Orders Number 3070, dated 8 July 1970, awarded the applicant the ARCOM with 1st Oak Leaf Cluster for meritorious achievement during the period 7 January 1970 to 6 June 1970.

8.  Headquarters, U.S. Army Vietnam, General Orders Number 3128, dated 10 July 1970, awarded the applicant the ARCOM with "V" Device for heroic action on 14 May 1970.

9.  Headquarters, U.S. Army Vietnam, General Orders Number 3889, dated 22 August 1970, awarded the applicant the Air Medal (AM).

10.  Headquarters, U.S. Army Vietnam, General Orders Number 4090, dated 2 September 1970, awarded the applicant the ARCOM with 2nd Oak Leaf Cluster for meritorious achievement during the period 6 June 1970 to 17 September 1970.

11.  Headquarters, 25th Infantry Division, General Orders Number 10464, dated 24 October 1970, awarded the applicant the ARCOM for meritorious service for the period January 1970 to November 1970.

12.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show any injuries or wounds.

13.  On 30 November 1970, the applicant was honorably released from active duty.  His DD Form 214 shows he was awarded or authorized:

* National Defense Service Medal
* Vietnam Service Medal (VSM)
* Republic of Vietnam Campaign Medal with Device (1960)

14.  The applicant provided his DD Form 214 and general awards awarding him the ARCOM with "V" Device.  He also provided a copy of his VA Rating Decision and correspondence that shows he was awarded disability compensation, in part, for a service-connected disability as a result of residuals from a shell fragment wound to the right upper arm.

15.  His records show he received all "excellent" conduct and efficiency ratings and are void of documentation showing he was awarded the AGCM.  There is no evidence of a commander's disqualification that would have precluded the applicant from being recommended for or awarded the first award of the AGCM.

16.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the 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.

17.  Army Regulation 600-8-22 (Military Awards) provides that:

	a.  The PH is awarded for a wound sustained 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 military medical personnel, and the medical treatment must have been made a matter of official record.

	b.  A bronze service star is authorized for wear on the VSM for participation in each credited campaign.

18.  Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The PH requires evidence to verify:

* the wound was the result of hostile action
* treatment of the wound by medical personnel
* documentation of the wound in official records

2.  There is no evidence in the available records that shows he was wounded as a result of hostile action in Vietnam.  Regrettably, his VA Rating Decision is insufficient evidence to support award of the PH.

3.  Records show general orders awarded the applicant the ARCOM (4th Award) and "V" Device; therefore, he is entitled to correction of his DD Form 214 to show this award.

4.  Special orders awarded him the CIB; therefore, he is entitled to correction of his DD Form 214 to show this award.
5.  Records show the applicant was awarded the Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, he is entitled to correction of his DD Form 214 to show these badges.

6.  He served honorably during the period 26 May 1969 through 30 November 1970.  Notwithstanding his Article 15, he received "excellent" conduct and efficiency ratings throughout his service without a commander's disqualification for award of the AGCM.  Therefore, it would be appropriate to award him the AGCM (1st Award) and to correct his DD Form 214 to show this award.

7.  General orders awarded the applicant the AM; therefore, he is entitled to correction of his DD Form 214 to show this award.

8.  The applicant participated in three campaigns during his service in Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show award of the VSM with three bronze service stars.

9.  General orders awarded the unit to which he was assigned in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation; therefore, he is entitled to correction of his DD Form 214 to show this unit award.

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:

	a.  awarding him the AGCM (1st Award) for the period 26 May 1969 to 30 November 1970,

	b.  deleting award of the VSM from his DD Form 214, and
	c.  adding the following awards to his DD Form 214:

* ARCOM with “V” Device (4th Award)
* AM
* AGCM
* VSM with three bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* CIB
* Expert Marksmanship Qualification Badge with Machine Gun Bar 
(M-60)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

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 PH.



      _______ _   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)                                         AR20140005802



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ABCMR Record of Proceedings (cont)                                         AR20140005802



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