IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160002337 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160002337 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Purple Heart for wounds received in the Republic of Vietnam on 3 October 1968; b. awarding him the Army Good Conduct Medal (1st Award) for the period 10 January 1967 through 1 January 1969; and c. amending his DD Form 214 by deleting the Bronze Star Medal and the Vietnam Service Medal and adding the: * Bronze Star Medal with "V" Device * Purple Heart * Army Good Conduct Medal (1st Award) * Vietnam Service Medal with four bronze service stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) __________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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160002337 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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Purple Heart. 2. On an attached Congressional Casework Authorization Form, dated 30 November 2015 and submitted through the Office of his Member of Congress, the applicant requests an upgrade of his Bronze Star Medal with "V" Device to the Medal of Honor. 3. The applicant states he suffered shrapnel wounds in the Republic of Vietnam, from a grenade thrown at him by a Vietnamese Soldier. He charged through hostile fire to eliminate an ambush threat and was hit in the back by an exploding grenade; however, he still eliminated the threat. He was awarded the Bronze Star Medal with "V" Device; these orders show he was injured during the action. 4. The applicant provides copies of his Decision Review Officer Decision from the Department of Veterans Affairs (VA), dated 24 May 2015, and General Orders Number 13126, issued by Headquarters, 1st Infantry Division on 14 December 1968. 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. Based on the applicant's application, the documents submitted with his application, and the evidence of record, it does not appear that he was recommended for or awarded the Medal of Honor. a. Title 10, U.S. Code, section 3741 (The Medal of Honor) was established by Joint Resolution of Congress on 12 July 1862 (amended by acts in 1918 and 1963). Army Regulation 600-8-22 (Military Awards) provides that the Medal of Honor is awarded by the President in the name of Congress, to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Incontestable proof of the performance of the service will be extracted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit. b. The governing law and regulations placed time limitations on submission of award recommendations. Absent any evidence of record, or independent evidence provided by the applicant that shows he was recommended for or awarded the Medal of Honor by the proper award authority, his request exceeds these statutory and regulatory time limitations. c. However, Title 10, U.S. Code, section 1130 allows the Service Secretary concerned to review a proposal for an award, 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, U.S. Code, section 1130, the applicant must submit a DA Form 638 (Recommendation for Award) with his application/request. The DA Form 638 should clearly identify his unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which he 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. d. Title 10, U.S. Code, 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 to the Secretary of the Army at the following agency: U.S. Army Human Resources Command (HRC), ATTN: SGS, 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. e. If the applicant chooses to pursue the Medal of Honor by submitting a request under the provisions of Title 10, U.S. Code, section 1130, and his request is subsequently denied by HRC, the applicant may reapply to the ABCMR with a copy of HRC's denial document. f. This portion of the applicant's request is considered premature; therefore, it not be discussed further in these Proceedings. 3. The applicant was inducted into the Army of the United States on 10 January 1967. He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). It appears he was also awarded MOSs 63A (Mechanical Maintenance Apprentice) and 63B (Light Wheeled Vehicle Repairman). 4. He served in the Republic of Vietnam from on or about 19 February 1968 through on or about 31 December 1968. During this period of service, he was assigned to 1st Battalion, 18th Infantry Regiment, 1st Infantry Division. 5. General Orders Number 13126, issued by Headquarters, 1st Infantry Division on 14 December 1968, awarded him the Bronze Star Medal with "V" Device for heroism on 3 October 1968. The citation of these orders reads: For heroism not involving participation in aerial flight, in connection with military operations against a hostile force in the Republic of Vietnam: On this date, Specialist Hxxxxxxxx, then private first class, was serving as a rifleman with his reconnaissance platoon which had engaged the enemy in an early morning ambush. During the fierce firefight in which he was injured, Specialist Hxxxxxxxx observed an insurgent move into a trench which had a commanding view of the friendly element. With complete disregard for his personal safety, Specialist Hxxxxxxxx maneuvered through a hail of hostile rounds to the ditch and began throwing hand grenades into it as he simultaneously fired his automatic rifle. He continued to brave the aggressors' barrages raking the area and put forth suppressive fire until contact was broken. His courageous initiative and bold determination significantly contributed to the successful outcome of the encounter. Specialist Four Hxxxxxxxx' outstanding display of aggressiveness, devotion to duty, and personal bravery is in keeping with the finest traditions of the military service and reflects great credit upon himself, the 1st Infantry Division, and the United States Army. 6. The applicant was honorably released from active duty on 1 January 1969. His DD Form 214 shows he completed 1 year, 11 months, and 22 days of net active service, including 10 months and 12 days of foreign service. His DD Form 214 further shows he was awarded or authorized the: * Bronze Star Medal * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960), shown as the "Vietnam Campaign Medal" * Combat Infantryman Badge 7. Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) shows he was awarded the following during his period of active military service: * Bronze Star Medal with "V" Device * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) (awarded by Special Orders Number 230, VII Corps Special Troops, dated 1967) * 1 overseas service bar 8. The applicant's military medical records are not available for review in this case. 9. Item 38 (Record of Assignments) of his DA Form 20 shows he consistently received "excellent" conduct and efficiency ratings throughout his service. 10. His record is void of documentation that shows he was awarded the Army Good Conduct Medal; however, it is also void of a commander's disqualification statement related to his initial award of the Army Good Conduct Medal, or documentation that shows he was subject to any disciplinary or derogatory actions during his period of service, including court-martial convictions under the Uniform Code of Military Justice. 11. The applicant provides a copy of his Decision Review Officer Decision from the VA, dated 24 May 2015, which details two separate medical issues attributed to his service in the Republic of Vietnam, for which he is receiving disability compensation: * Thoracic Spine Degeneration Joint Disease with Muscle Spasm Status Post Shrapnel Injury with Possible Retained Foreign Body * Residual Scar Shell Fragment Wound Right Inferior Lateral Chest Wall with a Retained Metallic Foreign Body REFERENCES: 1. Army Regulation 600-8-22 (Military Awards): a. The Purple Heart is awarded to a member of the Armed Forces of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record. b. A bronze service star is authorized to be affixed to the Vietnam Service Medal for each Vietnam campaign a member is credited with participating in. Appendix B shows that during his service in Vietnam, participation credit was awarded for the following four campaigns: * Tet Counteroffensive (30 January 1968 – 1 April 1968) * Vietnam Counteroffensive Phase IV (2 April 1968 – 30 June 1968) * Vietnam Counteroffensive Phase V (1 July 1968 – 1 November 1968) * Vietnam Counteroffensive Phase VI (2 November 1968 – 22 February 1969) 2. Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. The enlisted person must have had all "excellent" conduct and efficiency ratings, and he or she could not have been convicted by court-martial under the Uniform Code of Military Justice. 3. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. This document shows the 1st Battalion, 18th Infantry Regiment, the unit to which the applicant was assigned during his service in the Republic of Vietnam, was cited for the following unit awards: * Republic of Vietnam Gallantry Cross with Palm Unit Citation, for the period 12 July 1965 through 16 October 1968, by Department of the Army General Orders (DAGO) Number 21, dated 1969 * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, for the period 12 July 1965 through 7 April 1970, by DAGO Number 53, dated 1970 DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show he was awarded the Purple Heart was carefully considered. 2. General Orders Number 13126, issued by Headquarters, 1st Infantry Division on 14 December 1968, awarded the applicant the Bronze Star Medal with "V" Device for heroism on 3 October 1968. The citation of these orders confirms he was injured during a fierce firefight with the enemy. The nature of his injury is not specified; however, he states he was wounded by enemy shrapnel. His Bronze Star Medal orders do not suggest he was injured by accident or through any negligent act; therefore, it is reasonable to presume his injury resulted entirely from his engagement with the enemy. 3. The evidence of record shows the applicant was injured while engaging the enemy on 3 October 1968. The treatment of his injuries is not documented in his record; however, based on a review of the VA documentation he provides with his application, it appears likely his injury consisted of a shrapnel wounds. 4. In the absence of the applicant's military medical records, it is not possible to conclude he wasn't treated for this injury, or that such treatment was not made a matter of official record. 5. The preponderance of the evidence indicates the injuries he sustained on 3 October 1968 met the criteria for award of the Purple Heart. 6. General orders awarded him the Bronze Star Medal with "V" Device; however, his DD Form 214 shows only the Bronze Star Medal. 7. The evidence of record shows the applicant served honorably during the period 10 January 1967 through 1 January 1969, he received no court-martial actions, and he consistently received "excellent" conduct and efficiency ratings throughout his service. His record is void of documentation that shows he was awarded the Army Good Conduct Medal; however, the evidence shows he met the criteria for this award. 8. Records show he participated in four campaigns during his service in the Republic of Vietnam. His DD Form 214 lists the Vietnam Service Medal as an authorized award; however, it does not reflect the four bronze service stars that should be affixed to it in recognition of his campaign participation. 9. General orders awarded his unit of assignment in the Republic of Vietnam 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 in which he was assigned. However, these unit awards are not shown on his DD Form 214. 10. Special orders awarded him the Expert Marksmanship Qualification Badge with Rifle Bar (M-14); however, this badge is not recorded on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002337 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2