PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            8 March 2001
	DOCKET NUMBER:   AR2000048920

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be awarded the Silver Star (SS), Purple Heart (PH), PH First Oak Leaf Cluster (1st OLC), and that these awards be added to his records. 

3.  The applicant states, in effect, that he never received the PH even though he was wounded twice in Vietnam, as evidenced in the citations contained in the  two Bronze Star Medal (BSM) with Valor (“V”) Device orders enclosed.  He claims that sometime between June and August 1970, while hospitalized, he was awarded the SS for his gallantry in action, on 8 June 1970, in the Central Highlands of Vietnam.  He indicates that he never raised the issue during his separation processing because he wanted to get home.  He claims that receiving these awards is now important to him and his family. 

4.  The applicant’s military records show that on 8 May 1969, he was inducted into the Army of the United States for two years.  He successfully completed basic combat training and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Infantryman) and he was assigned to combat duty in Vietnam for his first permanent duty station.  

5.  On 9 October 1969, the applicant arrived in Vietnam and he was assigned to Company C, 2nd Battalion, 35th Infantry Regiment, 4th Infantry Division as a Rifleman.  On 8 October 1970, he completed his tour in Vietnam and was reassigned to Fort Benning, Georgia, where he served until his separation on 
15 March 1971. 

6.  The applicant’s Department of the Army (DA) Form 20 (Enlisted Qualification Record) shows that on 28 March 1970, he was promoted to specialist four/E-4 (SP4), the highest rank he held on active duty, and that on 16 August 1970, he was reduced in rank to private first class/E-3 (PFC) as a result of nonjudicial punishment, which is the rank he held on the date of his separation from active duty.  

7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of two General Orders (GOs), Numbers 2010 and 2666, dated 1 and 29 April 1970 respectively, both were issued by Headquarters, 4th Infantry Division, Vietnam.  These GOs confirm he was awarded the BSM with Valor (“V”) Device and the BSM 1st OLC with “V” device for heroism in connection with two separate military operations against an armed enemy force, in the Republic of Vietnam, on 9 and 19 January 1970.  These orders contain citations that verify that he was wounded in action in both of these engagements for which he was cited for heroism. 

8.  The applicant’s MPRJ also contains a copy of GO Number 13, dated 
20 January 1970, which awarded the applicant the PH for wounds he received in action, in the Republic of Vietnam, on 19 January 1970.  In addition, his medical record contains a copy of a DA Form 8-275-3 (Clinical Record Cover Sheet), dated 21 January 1970, that confirms he was treated for fragment wounds to the right thigh, which he received in action on 19 January 1970.  

9.  The applicant’s DA Form 20 and MPRJ are void of any reference to the applicant’s involvement in an action in the Central Highlands of Vietnam during the June 1970 timeframe or at any other time during his tour.  In addition, there are no documents on file that would indicate that he was ever recommended for the SS in connection with any such action or at any other time during his tenure in Vietnam. 

10.  The Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file, which was issued to and authenticated by the applicant with his signature on the date of his separation, shows that he was released from active duty, on 15 March 1971, which was an early release in order to attend school.  At the time of his separation, he had completed 1 year, 9 months, and 13 days of active military service and he had accrued 26 days of time lost due to two separate incidents of being absent without leave (AWOL).

11  The DD Form 214 also indicates, in block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), that the applicant earned the following awards during his tenure on active duty:  National Defense Service Medal; Vietnam Service Medal with 2 bronze service stars; Vietnam Campaign Medal with 1960 Device; Combat Infantryman Badge; BSM 1st OLC with “V” Device; 2 Overseas Bars; First Class Gunner Badge 
(M-60 Machine Gun); Sharpshooter Marksmanship Badge (M-14 Rifle); and Marksman Marksmanship Badge (M-16 Rifle).  

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards.  Paragraph 1-14 (Time Limitations) states, in pertinent part, that each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored. 

13.  Paragraph 2-8 (Purple Heart) contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member of an Armed Force who has been wounded or killed in action.  In order to award the PH, it must be established that the wound required treatment by a medical officer and this treatment was made a matter of official record.  

14.  Paragraph 3-9 contains guidance on awarding the SS.  It states, in pertinent part, that the SS is awarded to any member of the Army who is cited for gallantry in action against an armed enemy of the United States while engaged in military operations involving conflict with an opposing force.  The required gallantry, while of a lessor degree that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.  

15.  Paragraph 3-18 provides the rules for processing the DA Form 638 (Award Recommendation), which is required to initiate, process, and approve award recommendations of all U.S. Army individual decorations, to include valor and heroism decorations.  Table 3-3 (Delegation of Award Approval Authority-Wartime Conditions) indicates that Commanding Generals of a U.S. Army Force in the rank of General is authorized to approve the award of the SS.  During the Vietnam conflict this approval authority was delegated to field commanders in the rank of Major General by United States Army Vietnam Regulation 672-1. 

16.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration. 

17.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the register contains a list of all units and the unit awards to which they are entitled and the period for which the awards were earned.  This table indicates that during the applicant’s tenure with his unit they earned the Republic of Vietnam Gallantry Cross/with Palm (RVNGC w/palm) for service, between 1 August 1967 and 28 July 1969, as codified in DAGO 38, published in 1970.

CONCLUSIONS:

1.  The Board noted the applicant’s contention that he is entitled to the SS, for his gallantry in action in the Central Highlands of Vietnam in the June 1970 timeframe, but finds this claim lacks merit. 

2.  Although the Board wishes to congratulate the applicant on his heroic combat service in Vietnam and notes that he was cited for heroism twice during his tour, the qualification record is void of any reference to his having been awarded the SS by the proper authority. 

3.  In addition, there are no documents on file in the applicant’s MPRJ that give any indication of his having ever been recommended for the SS for gallantry in action during his tenure on active duty.  Thus, the Board finds no evidentiary basis on which to support this specific relief.  

4.  Further, the Board notes that the applicant has failed to exhaust his administrative remedies in pursuing his claim for the SS.  By law, he may pursue his claim to the SS by request through his Member of Congress under the provisions of 10 USC 1130. 

5.  However, after a careful review of the evidence of record, the Board did find merit in the applicant’s claim of entitlement to two awards of the PH for wounds he received in action, in Vietnam, in two separate engagements, on 9 and 
19 January 1970 respectively.  

6.  By regulation, in order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  

7.  The record includes a copy of GO Number 13, dated 20 January 1970, which confirms that the applicant received the PH for wounds he received in action, in the Republic of Vietnam, on 19 January 1970.  The Board presumes this award was erroneously omitted from his DD Form 214 due to an administrative error and finds it would be appropriate to correct this inaccuracy at this time. 

8.  In addition, a copy of GO Number 2010, dated 1 April 1970, which awarded the applicant the BSM with “V” Device, is on file in his MPRJ.  The citation contained in this order confirms that the applicant was wounded by enemy sniper fire, while pulling three casualties to safety, during military operations against an armed enemy force, in the Republic of Vietnam, on 9 January 1970. 

9.  Although there are no medical records to confirm the applicant was treated for the wound he received on 9 January 1970, in the opinion of the Board, the citation contained in GO 2010 sufficiently satisfies the regulatory burden of proof necessary to award the PH.  Thus, the Board concludes that it would serve the interest of justice and equity to award him the PH 1st OLC at this time.  

10.  In addition, the evidence or record makes clear that the applicant is entitled to receive the RVNGC w/palm and although this award was authorized subsequent to his separation, the Board concludes that it would be appropriate to add it to his records at this time. 

11.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing the individual concerned earned the PH for wounds he received in action, on 19 January 1970, while serving as a PFC, in the Republic of Vietnam; 

b.  by awarding him the PH 1st OLC for wounds he received in action, on 
9 January 1970, while serving as a PFC, in the Republic of Vietnam;  

c.  by showing that he earned the RVNGC w/palm for his service with Company B, 2nd Battalion, 35th Infantry Regiment, 4th Infantry Division, during his tour of duty in Vietnam; and 

d.  by issuing him a corrected separation document that reflects these changes. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___wdp__  __bjl____  __rwa___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Roger W. Able______
		        CHAIRPERSON

INDEX

CASE ID	AR2000048920	
SUFFIX		
RECON		
DATE BOARDED	2001/03/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/03/15	
DISCHARGE AUTHORITY	AR 635-200 C5	
DISCHARGE REASON	Early Release for School	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  53	107.0007	
2.  61	107.0015	
3.		
4.		
5.		
6.