IN THE CASE OF:  

		BOARD DATE:   27 August 2015

		DOCKET NUMBER:  AR20150001398


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 award of the Bronze Star Medal and the Purple Heart for his service in the Republic of Vietnam.

2.  The applicant states his entire unit was awarded the Bronze Star Medal; however, he never got his.  He has shrapnel in his face that caused him trauma, which was not properly diagnosed or addressed at the time.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 16 January 2015, and an x-ray of his mouth, teeth, and jaw.

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 27 May 1970.  After completing his initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his period of active military service was specialist four (SP4)/E-4.

3.  He served in the Republic of Vietnam from 27 October 1970 through            26 October 1971.  During this period of service, he was assigned to:

* 1st Battalion, 61st Infantry Regiment, 5th Infantry Division (Mechanized), from on or about 22 November 1970 through on or about 10 August 1971
* 1st Battalion (Airmobile), 12th Cavalry Regiment, 1st Cavalry Division, from on or about 11 August 1971 through on or about 26 October 1971

4.  His record contains a Standard Form (SF) 93 (Report of Medical History) that documents the separation physical he was given on 6 December 1971.  

   a.  In response to Question 19 (Have you ever been a patient in any type of hospitals?...), the applicant placed a checkmark in the "Yes" column and entered the following remark in the space provided: "Vietnam 18th surge [surgical], shramp [sic] metal in lip – mouth."
   
   b.  The examining physician included the following hand-written note: "Frag wound RVN [Republic of Vietnam] – through upper lip and knocked out 2 front teeth." 

5.  He was honorably released from active duty on 9 December 1971, after completing 1 year 6 months, and 13 days of net active service including 1 year of foreign service.  Upon his release from active duty, he was transferred to the U.S. Army Reserve.  His DD Form 214 shows he was awarded or authorized the following awards and decorations:

* National Defense Service Medal
* Vietnam Service Medal with 1 bronze service star
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge

6.  His record is void of any documentation that shows he was recommended for or awarded the Bronze Star Medal.

7.  His record is void of orders that show he was awarded the Purple Heart, nor does it contain any documentation indicating he was treated for wounds or injuries he sustained during his service in the Republic of Vietnam.  Additionally, Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank, indicating the absence of any documented wounds during his period of military service.  His medical record is not available for review.

8.  His name does not appear on the Vietnam casualty roster.

9.  A 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 U.S. Army Human Resources Command, failed to reveal any orders that show the applicant was awarded the Bronze Star Medal or the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.    

	a.  The Bronze Star Medal is awarded in time of war for heroism (distinguished with a "V" device) 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).  

     b.  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.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command (AHRC-PDP-A), 1600 Spearhead Division Avenue, Fort Knox, Kentucky  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Bronze Star Medal and the Purple Heart for his service in the Republic of Vietnam was carefully considered.

2.  The applicant's available record is void of any documentation that shows he was recommended for or awarded the Bronze Star Medal by proper authority.  The governing Army regulation states that for personal decorations (including the Bronze Star Medal), formal recommendation, approval through the chain of command, and announcement in orders is required.

3.  In the absence of official orders, there is insufficient evidence to correct his records to show he was awarded the Bronze Star Medal.  Nevertheless, this in no way affects his right to pursue his claim for the Bronze Star Medal by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  The applicant contends he should be awarded the Purple Heart.  His separation physical alludes to a fragmentary wound he suffered to his face during his service in the Republic of Vietnam.  However, neither his available record nor the Vietnam casualty roster provides sufficient detail to clarify the circumstances that led to his facial injuries while in Vietnam.  Specifically, his record does not establish how the injury/wound occurred, whether it was severe enough at the time to require medical treatment, and whether that treatment was made a matter of official record.  Additionally, his record does not establish whether the injury/wound he sustained was caused by enemy action, accident, or fratricide.  

5.  Currently, without further clarifying documentation such as morning reports or witness statements from company medics or members of his chain of command, there is no evidence he received a wound that resulted from hostile action, that such a wound required treatment by medical personnel, or that the resulting medical treatment was made a matter of official record.  

6.  Notwithstanding his sincerity and faithful service, and in the absence of evidence to the contrary, there is an insufficient evidentiary basis on which to grant the requested relief.    

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)                                         AR20100015543



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ABCMR Record of Proceedings (cont)                                         AR20150001398



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