IN THE CASE OF:  	  

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20140021013 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was retired by reason of permanent disability and to show he was awarded the Purple Heart, Bronze Star Medal (BSM) and Combat Infantryman Badge (CIB).

2.  The applicant states he was permanently retired from the Temporary Disability Retired List (TDRL) and his DD Form 214 should be updated to reflect his change in status.  Additionally, he was awarded the Purple Heart, BSM and CIB and these medals should be added to his DD Form 214.

3.  The applicant provides copies of his DD Form 214, his VA Rating Decision, BSM Certificate, orders awarding him the CIB, and orders permanently retiring him.

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 6 December 1966 for a period of 3 years under the airborne enlistment option.  He completed his basic training at Fort Polk, Louisiana, his advanced individual training as a light weapons infantryman at Fort Gordon, Georgia and his airborne training at Fort Benning, Georgia before being transferred to Vietnam on 13 June 1967 for assignment to Company C, 2nd Battalion, 327th Infantry Regiment.  

3.  The applicant was wounded (shrapnel wounds to back and right shoulder) on 26 June 1967.  He was initially treated in Vietnam and then transferred to the 249th General Hospital in Japan.  On 10 September 1967, he was transferred to Brooke Army Medical Center in San Antonio, Texas. 

4.  On 27 March 1968, the applicant was placed on the TDRL with a 40 percent disability rating.  He was issued a DD Form 214 showing he served 1 year, 3 months and 22 days of active service with 2 months and 28 days of foreign service in Vietnam.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Parachutist Badge, Vietnam Campaign Medal with Device (1960), Army Good Conduct Medal, and his marksmanship badges.

5.  The applicant provided Special Orders 269 issued by 1st Brigade, 101st Airborne Division dated 26 September 1967 awarding him the CIB.  The applicant has also provided a BSM Certificate showing he was awarded the BSM for meritorious service during the period of 14 June 1967 to 13 June 1968.  However, his records do not contain and the applicant did not provide orders announcing award of the BSM.

6.  The applicant was removed from the TDRL on 31 May 1972 and was permanently retired on 1 June 1972 with a 40 percent disability rating.

7.  The applicant’s records show that he sustained shrapnel wounds on 26 June 1967 and his records show that he was treated for those wounds.  Additionally, his name is contained on the Vietnam Casualty listing for the same date as well.  However, his records do not contain an order awarding him the Purple Heart.

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 U.S. Army Human Resources Command, failed to reveal orders awarding the Purple Heart or BSM to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required (emphasis added).  

10.  Army Regulation 600-8-22 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.

11.  Army Regulation 600-8-22 states a bronze service star is authorized for wear on the Vietnam Service Medal for participation in each credited campaign in which a member participates.  During the applicant's service in Vietnam, he participated in the Vietnam Counteroffensive Phase III campaign (1 June 1967 - 29 January 1968).

12.  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 the applicant’s unit was cited by general orders for the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.

13.  Army Regulation 635-5 (Separation Documents) prescribes the standardized procedures for the preparation and distribution of the DD Form 214.  It provides that a DD Form 214 will not be prepared when individuals are removed from the TDRL.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was wounded in action in Vietnam on 26 June 1967 and treatment for his wounds was made a matter of official record.  Accordingly, he is entitled to award of the Purple Heart and to have it added to his DD Form 214.

2.  The applicant was awarded the CIB and is entitled to have it added to his DD Form 214.

3.  The applicant served in one campaign in Vietnam and is authorized one bronze service star for wear on his already awarded Vietnam Service Medal and to have it entered on his DD Form 214.

4.  Additionally, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to have these unit awards added to his DD Form 214.

5.  While the sincerity of the applicant’s claim that he was awarded the BSM is not in doubt, his records do not contain and he has not provided orders awarding him that award.  A search of ADCARS also did not show award orders were filed.  Orders announcing award of the BSM are required before it may be entered in his DD Form 214.  Therefore, in the absence of such orders there is insufficient evidence to add this award to his DD Form 214.

6.  Additionally, the applicable regulation provides that the DD Form 214 will not be issued or changed when an individual is removed from the TDRL.  Normally, orders are published announcing the change in status.  Accordingly, there is no regulatory requirement to change his DD Form 214 to show he was subsequently permanently retired.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ 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:

* awarding him the Purple Heart for wounds received in Vietnam on 26 June 1967 while serving in the rank of Private E-2
* deleting the Vietnam Service Medal from his DD Form 214
* adding to his DD Form 214 the Purple Heart, Vietnam Service Medal with one bronze service star, CIB, Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

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 adding the BSM to his 
DD Form 214 and correcting his DD Form 214 to show he was retired by reason of permanent disability.


      ______ _   _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)                                         AR20140021013



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ABCMR Record of Proceedings (cont)                                         AR20140021013



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