PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002078864


         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelley		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.

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2. The applicant requests reconsideration of his previous application to correct his military records by awarding him the Purple Heart.

3. The applicant states, in effect, that he received a well-documented concussion from a blast while blowing tunnels in Vietnam.

4. Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the Board's previous consideration of the Docket Number AC94-11502 by the Army Board for Correction of Military Records (ABCMR) on 22 March 1995.

5. The applicant provided two statements from fellow soldiers in support of his claim for award of the Purple Heart. However, these two statements were previously considered by the ABCMR on 22 March 1995.

6. The applicant provided a personal account of his wounding. He contends that he was injured in the early part of 1969 when explosives that he had set up to destroy "pungie pits" detonated. He states that the concussion of the explosion blew his "steel pot" completely off of his head and that he immediately experienced ear/hearing problems. He further states that he received medical treatment for his ear/hearing problems.

7. The applicant also provided a diagram depicting the surroundings of the incident.

8. The applicant’s statement and diagram are new evidence which will be considered by the Board.

9. There is no evidence in the applicant's service personnel records that he was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

10. The applicant's name does not appear on the Vietnam Casualty Roster.

11. The applicant signed his DD Form 214 on 5 June 1970 attesting to the fact that he was not entitled to award of the Purple Heart.

12. The applicant's DD Form 214 shows the Vietnam Service Medal as an authorized award. His records show that he served in Vietnam from 5 November 1968 through 4 November 1969 and participated in four campaigns during his assignment in Vietnam.

13. The Board notes that the applicant is entitled to two Overseas Service Bars for his assignment in Vietnam. This award is not shown on his DD Form 214.

14. There is no evidence the applicant received the first award of the Good Conduct Medal. There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.

15. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) also shows the applicant is entitled to award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971. This award is not shown on his DD Form 214.

16. 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, and the medical treatment must have been made a matter of official record.

17. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

18. Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

19. Army Regulation 670-1, in effect at the time, governs the requirements for the Overseas Service Bar. In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars. For Vietnam service, one overseas service bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973. Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the overseas service bar.

20. Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service. Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.

21. Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

22. Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

CONCLUSIONS:

1. The Board reviewed the applicant's personal account of his wounding and the diagram provided in support of his claim for award of the Purple Heart. By his own admission, the applicant was injured when explosives that he had set up to destroy "pungie pits" detonated.

2. There is no evidence that the applicant was injured as a result of hostile action. There is also no evidence that he was wounded as a result of “friendly fire” in the “heat of battle.” Based on the foregoing, the Board determined that there is insufficient evidence on which to base award of the Purple Heart.

3. After review of all the evidence in this case and the latest submissions, this Board also concluded the applicant has presented no argument or evidence which is sufficient to reverse the previous decision rendered by the ABCMR in Docket Number AC94-11502 on 22 March 1995.

4. The applicant’s DD Form 214 shows the Vietnam Service Medal as an authorized award. However, evidence of record shows the applicant participated in four campaigns during his assignment in Vietnam which are not correctly shown by award of four bronze service stars for wear on his Vietnam Service Medal. Therefore, in accordance with the governing regulation, the applicant is entitled to the Vietnam Service Medal with four bronze service stars and correction of his DD Form 214 to show these awards.

5. Based on the applicant's service in Vietnam, he is entitled to correction of his DD Form 214 to show two awards of the Overseas Service Bar.

6. The applicant is entitled to the first award of the Good Conduct Medal for the period 7 June 1968 through 5 June 1970 based on completion of a period of qualifying service ending with the termination of a period of Federal military service. Therefore, the applicant is entitled to correction of his records to show this award.

7. The applicant's unit received the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it. Therefore, the applicant is entitled to correction of his DD Form 214 to show this unit citation.

8. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant's records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that he individual concerned was awarded the Vietnam Service Medal with four bronze service stars, two awards of the Overseas Service Bar, the first award of the Good Conduct Medal and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

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

TAP___ RWA____ JAK_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Thomas A. Pagan____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002078864
SUFFIX
RECON	Yes
DATE BOARDED	20030313
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.0015
2.	107.0000
3.
4.
5.
6.