IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140010976 


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 effect:

   a.  the following awards and their addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

* Silver Star
* Bronze Star Medal with V Device
* Purple Heart 
* Air Medal
* Combat Infantryman Badge

b.  and that he be provided a DD Form 215 (Correction to DD Form 214).

2.  The applicant states the Combat Infantryman Badge is listed on his DD Form 214 but was erroneously omitted from his DD Form 215.  He also states: 

   a.  He was not awarded the medals which his leaders, to include his battalion commander (Brigadier General Dxxxxxx Sxxxx, Retired), advised him that he had earned.  He is submitting evidence/documents from his former chain of command and platoon members for the recommendations and testimony for him to be awarded the Silver Star Medal, Bronze Star Medal with "V" Device, Purple Heart, and Air Medal for actions while serving as a point man and sniper in combat with the 9th Infantry Division from 1968 through 1969 in Vietnam.

   b.  Due to the fog of war and a number of circumstances, which are revealed in the “DA Form 600-8-2” [sic, DA Form 638 (Recommendation for Award)] and testimonial letters, etc., he was overlooked for the aforementioned awards.  Some evidence is addressed to the U.S. Army Human Resources Command (HRC) and to a Member of Congress.  He was under the impression that was where the evidence was going.  It wasn't until recently that it was realized that the material had to be submitted to the Army Board for Correction of Military Records (ABCMR).  The enclosed evidence ranges from 2009 through 2014.

   c.  During and since Vietnam, many former platoon members who were witnesses to these actions were killed in action, have died since 1968 to 1969, and/or are hard to locate, which is evident in the window of time since these recommendations have come to light during the 9th Infantry Division reunions.  Unfortunately, some former platoon members were not aware that statements had to be notarized and they are now suffering from health problems making it more difficult to do so.

3.  The applicant provides copies of the following:

* five DA Forms 1594 (Daily Staff Journal or Duty Officer's Log)
* General Orders (GO) Number 2768
* Air Medal citation
* DD Form 214
* DD Form 215
* three DA Forms 638
* Required Information for Recommendation of the Silver Star
* Proposed Citation for the Silver Star
* six letters written to HRC
* article on the "First Sweep"
* self-made maps of the terrain in Vietnam
* illustration of fire fight (ambush)
* Department of Veteran Affairs (VA) Rating Decision

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  With respect to the Silver Star and Air Medal:

   a.  Approximately in 2009, in response to a 27 October 2009 request on behalf of the applicant concerning his desire to obtain awards of the Medal of Honor, Silver Star, Bronze Star Medal with 2nd Oak Leaf Cluster (OLC) and "V" Device, Purple Heart, Air Medal, and Army Commendation Medal with 2nd OLC and "V" Device for his service in Vietnam, HRC advised a Mexican-American Veterans Association official of the following:

		(1)  They reviewed the available historical records for the Vietnam Era as well as documentation submitted with the applicant's request and did not find sufficient evidence to authorize award of the Medal of Honor.  In effect, from that review they also did not find GO authorizing award of the Silver Star to the applicant or locate GO authorizing him a third award of the Bronze Star Medal.

		(2)  To be considered for awards of the Medal of Honor, Silver Star, and Bronze Star Medal for valor required substantive evidence, including a DA Form 638 signed by an individual with personal knowledge of the action with former wartime chain of command endorsement, proposed citation and narrative, an official unit report of the action, signed eyewitness affidavits regarding the action, and a copy of the individual's DD Form 214.  Maps, diagrams, and sketches of the location of the action also were required for a recommendation for the Medal of Honor.

		(3)  Official documentation reflecting medical treatment must be provided for award of the Purple Heart.  They reviewed historical casualty records for the Vietnam Era and did not find the applicant's name among the list of battle casualties.  They acknowledged receipt of the statements describing the applicant's wounds; however, they were unable to authorize an award of the Purple Heart based on statements alone.  Verification of entitlement could be possible by conducting a review of unit morning reports for the period in question. Any evidence located documenting wounds or injuries as the result of enemy action could be forwarded to that office for future review and determination.

		(4)  In order to determine the applicant's entitlement to award of the Air Medal copies of GO assigning him flying duties as well as copies of his DA Form 759 (Individual Flight Record and Individual Flight Certificate – Army), DA Form 759-1 (Individual Flight Record) and U.S. Army Republic of Vietnam (USARV) Form 131-R (Awards and Qualification Record (Air Medal) must be provided to that office.  
	b.  Based upon his application, the evidence of record, and accompanying supporting documents the applicant submitted, it does not appear that he was recommended for or awarded the Silver Star or the Air Medal, or that he has complied with the requirements set forth in the correspondence he received from HRC.  As such, his request to this Board is premature.

	c.  Paragraph 2-5, Section II, Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her.  There is no evidence that the applicant has submitted a request to the HRC and he was denied relief. 

	d.  Pursuant to Title 10, USC, section 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. 

	e.  Title 10, USC, section 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10 USC 1130, the applicant must submit a DA Form 638 (Recommendation for Award).  The DA Form 638 should clearly identify the applicant's unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which the member is requesting recognition must accompany the DA Form 638.  In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	f.  Title, 10 USC, section 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.  Therefore, the applicant must submit his request through a Member of Congress who will send it to HRC, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	g.  Because the applicant has not submitted his request in accordance with Title 10, USC, section 1130, and has been denied relief, his request pertaining to award of the Silver Star and the Air Medal are premature and these issues will not be discussed further in these Proceedings. 

3.  With regard to the Bronze Star Medal with "V" Device and the Combat Infantryman Badge, a review of the applicant's military records show he was inducted into the Army of the United States on 20 March 1968.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  

4.  He served in Vietnam from 24 August 1968 through 17 July 1969, during four campaigns.  He was assigned to the following units:

* Company B, 2nd Battalion, 47th Infantry, 9th Infantry Division, from 3 September 1968 through 26 January 1969
* Headquarters and Headquarters Company, 2nd Battalion, 47th Infantry, 9th Infantry Division, from 27 January through 13 June 1969, where he served in MOS 05B (radio operator)
* Company B, 2nd Battalion, 47th Infantry, 9th Infantry Division, from 14 June through 4 July 1969
* Company C, 2nd Battalion, 47th Infantry, 9th Infantry Division, from 5 through 16 July 1969

5.  He provided copies of 5 DA Forms 1594, dated between 9 to 12 October 1968, which listed the incident, messages, orders, etc., for the 9th Infantry Division for the periods covered.

6.  Headquarters, 9th Infantry, issued the following orders:

* Special Orders (SO) Number 01, dated 27 October 1968, awarding him the Combat Infantryman Badge (1st Award) (this awarded is currently listed on his DD Form 214)
* GO Number 8239, dated 2 July 1969, awarding him the Bronze Star Medal with "V" Device for heroism in connection with military actions involving a conflict with an armed hostile force in Vietnam from 25 April through 26 May 1969

7.  He was honorably released from active duty in pay grade E-5 on 24 March 1970.  He was credited with completing 2 years of active service.  His DD Form 214 lists the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60)
* Army Commendation Medal with "V" Device
* Combat Infantryman Badge
* Bronze Star Medal
* Vietnam Service Medal with 3 bronze service stars
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

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

* Item 38 (Record of Assignments) he received an "unknown" conduct and efficiency rating between 1 October 1968 through 26 January 1969.  He received "excellent" conduct and efficiency ratings prior to and after that period of service
* Item 40 (Wounds) no entry to show he was wounded in action while serving in Vietnam  
* Item 41 (Awards and Decorations) all of the awards listed on his DD Form 214 and the Army Commendation Medal with "V" Device and 
1st OLC
* Item 42 (Remarks) Reentry Code 3B – Not Qualified to Reenlist

9.  He also provided copies of five DA Forms 638, citations, narratives, eyewitness statements, and maps of the terrain in support of his request.  He also provided a copy of his VA Rating Decision, dated 2 February 2012, which shows he was awarded an increase in his service-connection disability rating for post-traumatic stress disorder.

10.  On 12 March 2010, he was issued a DD Form 215, adding the following awards, he was also issued the medal sets, and the information was included in his official military personnel file: 

* Bronze Star Medal with 1st OLC and "V" Device
* Army Commendation Medal with 2nd OLC and "V" Device
* Vietnam Service Medal with 4 bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

11.  Army Regulation 600-8-22 (Military Award) states the Purple Heart is awarded for a wound sustained as a result of enemy 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.







DISCUSSION AND CONCLUSIONS:

1.  With regard to the Combat Infantryman Badge and Bronze Star Medal with "V" Device:

   a.  SO awarded him the Combat Infantryman Badge and this award is properly listed on his DD Form 214.

   b.  GO awarded him the Bronze Star Medal with "V" Device during his period of service in Vietnam.  A DD Form 215 has been issued adding this award to his DD Form 214.  

   c.  Therefore, no corrective action is required.

2.  A DD Form 215 was issued to provide the missing information.  Since the Combat Infantryman Badge is already listed on his DD Form 214 as such it would not be listed on the DD Form 214 he was issued.  He was appropriately issued a DD Form 215 adding the missing awards he was entitled to receive. 

3.  With regard to the Purple Heart:

   a.  There is no evidence of record and the applicant did not provide sufficient evidence showing he sustained a wound/injury as a result of enemy action, received treatment, and that treatment was made a matter of official record for award of the Purple Heart during his periods of service in Vietnam.  Additionally, his complete medical records, which are necessary to confirm that treatment was required, are not available for review.  Item 40 of his DA Form 20 does not show he was wounded.  Item 41 of this form does not list the Purple Heart.  His name is also not on the Vietnam casualty roster.

   b.  By regulation, to be awarded the Purple Heart it is necessary to established that a Soldier was wounded or injured in action.  There must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

   c.  Notwithstanding his contentions sincerity there is insufficient evidence upon which to base award of the Purple Heart.  Therefore, he is not entitled to award of the Purple Heart.



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)                                         AR20140010976



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ABCMR Record of Proceedings (cont)                                         AR20140010976



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