IN THE CASE OF: BOARD DATE: 12 NOVEMBER 2008 DOCKET NUMBER: AR20080012695 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, award of the Purple Heart, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Air Medal, the Bronze Star Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 2. The applicant states, in effect, that he should have been awarded the Purple Heart and some additional awards. He also states that during a meeting with a Department of Veterans Affairs representative concerning his post traumatic stress disorder (PTSD) case it was established that it was necessary for him to file a request for award of the above awards. He is conducting a search for his commander during his Vietnam service to verify the information. 3. In support of his application, the applicant provides copies of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and the statement he submitted to the VA in support of his claim for PTSD. 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's records show he enlisted in the Regular Army, in pay grade E-1, on 16 September 1963, for 3 years. He completed his basic combat and advanced training and was awarded military occupational specialty 31Q (Avionics Repairman). 3. The applicant served in Vietnam from 30 April 1964 through 30 September 1965, with the 96th Signal Detachment. 4. The applicant was honorably released from active duty, in pay grade E-5, on 15 September 1966, at the expiration of his term of service, and was transferred to the United States Army Reserve Control Group (Reinforcement). 5. Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded: the Armed Forces Expeditionary Medal; the Good Conduct Medal; the National Defense Service Medal; and the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-14). The Purple Heart, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Air Medal, the Bronze Star Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation are not shown on his DD Form 214. 6. There is no entry in Item 40 (Wounds), of the applicant's DA Form 20, Enlisted Qualification Record, showing he was wounded in action as a result of hostile enemy action. Item 41 (Awards and Decorations), of the applicant's DA Form 20, contains no entry showing he was awarded the Purple Heart, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Air Medal, and the Bronze Star Medal. 7. There are no orders in the applicant's military personnel records awarding him the Purple Heart and the Bronze Star Medal. There are also no orders in the applicant's records awarding him the Air Medal or any evidence that he served as a crewmember or non-crewmember on flying status while he served in Vietnam. 8. The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam. The applicant's name is not shown in this list. 9. A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart, the Air Medal, and the Bronze Star Medal. No orders for these awards were found in the ADCARS. 10. 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, as in this case, the Air Medal and the Bronze Star Medal. 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. 11. The applicant submitted a copy of his statement submitted to the VA in support of his claim for PSTD. In the statement addressed To Whom It May Concern, dated 19 February 2008, the applicant circled the section where he stated, in effect, while working on the flight line on a Huey helicopter, he fell to the metal runway on his tail bone and hurt his back. Over the years, he had to have several back procedures from private doctors to help with the pain. He also stated that his medical records from 1965 would support the event. 12. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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. This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart. 13. Army Regulation 600-8-22 also provides, in pertinent part, for award of the Vietnam Service Medal. This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. Upon request, a unit personnel officer may award the Vietnam Service Medal in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual. No person will be entitled to both awards for Vietnam service. 14. Army Regulation 600-8-22 also provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal. This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more and contributed direct combat support to the Republic of Vietnam and Armed Forces. Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due wounds resulting from hostile action were entitled to award of the Republic of Vietnam Campaign Medal. 15. Army Regulation 600-8-22 provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight. This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 16. United States Army Vietnam Regulation 672-1 (Military Awards) governed the military awards program in Vietnam during the Vietnam War. This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 17. Department of the Army Pamphlet 672-3 shows that Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, to all personnel assigned to the United States Army Vietnam. DISCUSSION AND CONCLUSIONS: 1. The evidence of records shows the applicant served a qualifying period of service for award of the Republic of Vietnam Campaign Medal. Therefore, he is entitled to award of the Republic of Vietnam Campaign Medal and to have this award shown on his DD Form 214. 2. The evidence also shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation. This unit award is also not shown on the applicant's DD Form 214. It would be appropriate to add it to his DD Form 214. 3. To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record. There is no evidence, and the applicant provided none to show that he was wounded as the result of hostile action. The applicant's name does not appear on the Vietnam Casualty Listing. There were no entries made in his service personnel records to show he was wounded as a result of hostile action and no orders were published to award him the Purple Heart. 4. The statement submitted by the applicant was considered; however, there is no evidence to show that the applicant was injured and/or awarded the Purple Heart while he served in Vietnam. This statement also provides insufficient evidence upon which to base award of the Purple Heart to the applicant. He is therefore not entitled to award of the Purple Heart and to have the Purple Heart added to his DD Form 214. 5. The applicant's contention that he should have been awarded the Air Medal and Bronze Star Medal is acknowledged; however, the applicant provided no general orders showing he was awarded the Air Medal and the Bronze Star Medal. No evidence was found either in his service personnel record or in the ADCARS data base to support addition of the Air Medal and the Bronze Star Medal to the applicant's DD Form 214. 6. While the available evidence is insufficient for awarding the applicant the Air Medal and the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the these awards by submitting a request through his Member of Congress under the provisions of 10 USC 1130. 7. The evidence shows the applicant was awarded the Armed Forces Expeditionary Medal for his qualifying period of service in Vietnam and this award is shown on his DD Form 214. The regulation specifies that a Soldier must request award of the Vietnam Service Medal in lieu of the Armed Forces Expeditionary Medal and the Armed Forces Expeditionary Medal must be removed from the records of the individual. The regulation also specifies that no person will be entitled to both awards for Vietnam Service. The applicant is also not entitled to award of the Vietnam Service Medal and to have it added to his DD Form 214 since he did not specifically request that the Armed Forces Expeditionary Medal be removed from his DD Form 214 in favor of having the Vietnam Service Medal awarded to him and added to his DD Form 214. 8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. 9. In view of the foregoing, the applicant’s records should be corrected as recommended below. 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 the applicant the Republic of Vietnam Gallantry Cross with Palm Unit Citation; by adding this award to the list of awards shown on his DD Form 214; and by providing him a corrected separation document. 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 award of the Purple Heart, the Air Medal, the Bronze Star Medal, and the Vietnam Service Medal, and their addition to his DD Form 214 _______ _ 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) AR20080012695 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080012695 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1