BOARD DATE: 17 April 2020 DOCKET NUMBER: AR20190004594 APPLICANT REQUESTS: correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show in: a. item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) award of the Prisoner of War Medal. b. Item 30 (Remarks) – he was held as a Prisoner of War. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 8 February 2019 * self-authored statement, dated 9 February 2019 * DD Form 214 for the period ending 24 March 1968 * California State Parks Disabled Veteran/Prisoner of War Pass Number 15025, dated 18 August 2005 * letter, Veterans Service Office, County of Santa Cruz, CA, dated 6 December 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant requests a personal appearance hearing. He states: a. He was suffering from severe headaches and vision loss due to friendly artillery fire. He fell and he became unconscious and during this time he was taken by the enemy. b. While in enemy hands, his skull was crushed by a gun butt. His group returned later, killed the enemy, and brought him back to American forces. c. He was returned to his command due to family problems and he was told his unit signed him in every day while he was with the command. He was never told that no records were kept on him. d. After leaving the service, he had severe head problems. His doctor examined him and said he had a crushed skull. The only way this could have happened is if he had been hit with a gun butt. After an operation, he was given a prisoner of war medical record. Upon reviewing his records, he discovered his DD Form 214 was never updated. e. He desires a personal appearance hearing or a review of his case with persons other than local interviewers. This is due to his recollection of events being described to a civilian worker, who after hearing his story, told him she did not believe him and erased his medical record. At the time, he was too demoralized to seek further help. 3. The applicant's records contain sufficient evidence to support additional awards not shown on his DD Form 214. His DD Form 214 will be administratively corrected to show award of the * an additional bronze service star to his previously-issued Vietnam Service Medal with one bronze service star * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal with First Class Unit Citation * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. The Board will consider his request for award of the Prisoner of War Medal and correction of his DD Form 214 to show his Prisoner of War status. The Board will also consider award of the Army Good Conduct Medal (First Award) for the applicant. 5. On 26 May 1966, the applicant was inducted into the Army of the United Sates. 6. He served in the Republic of Vietnam from 17 November 1966 to 12 November 1967 and he participated in two campaigns. While in Vietnam, he was assigned to Company C, 2d Battalion, 16th Infantry Regiment, 1st Infantry Division. 7. His Standard Form 89 (Record of Medical History), dated 12 April 1968, contains the following entries, in part, in: a. item 17 (Statement of Examinees Health in Own Words) – "Good" and b. item 20 (Have You Ever Had or Have You Now?) – "NO" is marked for "Head Injury.” 8. His Standard Form 88 (Record of Medical Examination), dated 12 April 1968, contains the following entries, in part, in: a. item 18 (Head, Face, Neck, Scalp) – clinical evaluation is marked “Normal" and b. item 74 (Summary of Defects and Diagnosis) – "None." 9. His DA Form 2496-1 (Disposition Form), dated 16 April 1968, did not list any medical conditions or injuries and listed his PULHES, a four numerical designations (1-4) used to reflect different levels of functional capacity in six factors as follows: * P – physical capacity or stamina – 1 * U – upper extremities – 1 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 1 * S –psychiatric – 1 10. His DA Form 3082-R (Statement of Medical Condition), dated 24 May 1968, shows he marked the block indicating, "There has been no change in my medical condition" since his last separation examination. 11. His DA Form 20 (Enlisted Qualification Record) shows in: a. item 29 (Qualification in Arms) – * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) b. item 38 (Record of Assignments) – he received all "excellent" conduct and efficiency ratings, c. item 40 (Wounds) – no entries, d. item 41 (Awards and Decorations) – he was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal with bronze service star * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) * Army Commendation Medal e. item 44 (Time Lost Under Section 672, Title 10, United States Code, and Subsequent to Normal Expiration Term of Service (ETS)) – no entries. 12. On 24 May 1968, he was honorably released from active duty. Item 24 of his DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) * Army Commendation Medal 13. He provided copies of: a. his California States Park identification card for Disabled Veterans or Prisoners of War, with Pass Number 15025, dated 18 August 2005 and b. a letter from the Veterans Service Office, Santa Cruz, CA, dated 6 December 2018, advising him that since receipt of his records could take several months, it was it was recommended that he provide a detailed statement about what happened while he was in Vietnam and why he believed his records should be corrected to include his missing in action/prisoner of war status and award of the Purple Heart. (The applicant did not include in his application a request for award of the Purple Heart.) 14. His name was not shown among those on a Vietnam Prisoner of War listing, a listing maintained by the National Archives and Records Administration that shows those who were returned alive during the Vietnam War. 15. His records are void of any evidence he was held as a Prisoner of War while in Vietnam or awarded the Prisoner of War Medal. 16. His records are void of derogatory information or a commander's disqualification for award of the Army Good Conduct Medal (First Award) for the period 26 May 1966 through 24 May 1968. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The governing regulation provides that at separation the service member’s record will be used to enter accurate information when completing their DD Form 214. The Board determined that the evidence presented is sufficient for award of the Army Good Conduct Medal. By a preponderance of evidence, the Board determined that there was insufficient evidence to show that the applicant was captured and held as a prisoner of war. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined the evidence presented is 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 amending his DD Form 214 for the period ending 24 May 1968 by awarding him the Army Good Conduct Medal. 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 his request for recognition as a Prisoner of War and a personal appearance before the Board. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records shows he was awarded or authorized the following awards not listed on his DD Form 214: * one bronze service star to his previously awarded Vietnam Service Medal with one bronze service star * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal with First Class Unit Citation * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) REFERENCES: 1. Title 10, United States 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 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Prisoner of War Medal is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917. b. The Prisoner of War Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service, who were taken prisoner and held captive – (1) While engaged in an action against an enemy of the United States. (2) While engaged in military operations involving conflict with an opposing foreign force. (3) While serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. c. The Prisoner of War Medal may be awarded to any person who, while serving in any capacity with the U.S. Armed Forces, who was held captive under circumstances not covered above which the Secretary of the Army finds were comparable to those circumstances under which persons have generally been held captive by enemy armed forces during periods of armed conflict. Award of the Prisoner of War Medal under comparable conditions provisions is the exception and not the rule. Authority to award the Prisoner of War Medal under this provision may not be delegated below the Secretary of the Army. While no minimum time period of captivity exists as eligibility criteria for the Prisoner of War Medal, the Services should determine each case on its own merit. d. For purposes of this medal, past armed conflicts are defined as World War I, World War II, Korean War, Vietnam Conflict, Grenada, Panama, Southwest Asia Conflict, Somalia, and Iraq. Hostages of terrorists and persons detained by governments with which the United States is not engaged actively in armed conflict are not eligible for the medal. The POW Medal will only be awarded when the individual's POW status has been officially confirmed and recognized as such by the Department of the Army. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual and established standard procedures for the preparation of these documents. The specific instructions stated item 30 (Remarks) section would be used to complete entries too long for their respective blocks. Instructions for mandatory items, in part stated to enter the total number of days lost with inclusive dates and to enter inclusive dates of excessive leave. Later versions of the regulation stated for Soldiers with Prisoner of War documentation, to enter "PRISONER OF WAR, unit of assignment/country, date of capture and release date." 5. 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; for the first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; 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. Ratings of "unknown" for portions of the period under consideration were not disqualifying. There must have been no convictions by a court-martial. However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders. 6. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register (January 1960 – February 1986) shows 2d Battalion, 16th Infantry Regiment, 1st Infantry Division, was awarded the: a. Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 12 July 1965 to 16 October 1968 by Department of the Army General Orders Number 32, dated 1969, a period the applicant was assigned to the unit. b. Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 12 July 1956 to October 1965 to 7 April 1970 by Department of the Army General Orders Number 53, dated 1970, a period the applicant was assigned to the unit. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004594 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1