PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 May 2003
         DOCKET NUMBER: AR2002080933


         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Mr. Robert Duecaster		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 that he be awarded the Silver Star and the Purple Heart.

3. The applicant states, in effect, that while serving in Vietnam as a military policeman (MP), he was severely injured during an attempt to arrest a Marine deserter who had taken his driver hostage with a pistol and grenade with the pinned pulled. He goes on to state that deserters had a reputation of killing MPs, so he rushed him and a struggle ensued. The deserter dropped the grenade and despite his kicking the grenade a few feet away, he and the deserter received most of the blast. He also states that he was medically evacuated to a hospital in Japan and then to a hospital in Colorado, where he remained until he was released from active duty (REFRAD). He further states that his commander recommended him for the Silver Star and he should have also received the Purple Heart for his wounds. In support of his application he submits a statement from a fellow soldier who was at the scene of the incident.

4. The applicant’s military records show that he enlisted in Oakland, California, on 10 January 1967 for a period of 3 years and training as a military policeman. He successfully completed his training and was transferred to Fort Hood, Texas.

5. On 6 October 1967, he was transferred to Vietnam with his unit. He was promoted to the pay grade of E-5 on 27 December 1968.

6. His records show that he received multiple fragment wounds to the body on 30 January 1969 and that he was subsequently transferred to Fitzsimmons General Hospital in Denver, Colorado, on 21 February 1969. He remained in Denver until he was honorably REFRAD on 3 September 1969, under the provisions of Army Regulation 635-200, chapter 5, due to being assigned to a medical holding company and indicating no further desire to extend or reenlist. He had served 2 years, 7 months and 24 days of total active service and was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), and the Republic of Vietnam Campaign Medal.

7. A review of the applicant's records failed to show that he was ever awarded the Purple Heart or that he was recommended for award of the Silver Star. However, a search of unit records at the National Archives revealed a duty officer's log, which mentions that a call was received at 1630 hours on 30 January 1969 in reference to a grenade incident

8. His records also show that he had excellent conduct and efficiency ratings throughout his service and they contain no derogatory information.

9. The statement submitted by the applicant with his application is authored by a fellow military policeman who relates that he arrived on the scene shortly after the grenade exploded. He corroborates the applicant's wounds and that the deserter was responsible for exploding the grenade.

10. Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound/injury sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was a result of hostile enemy action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record. An example of wounds or injuries which clearly do not qualify for award of the Purple Heart is an accident, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

11. That regulation also provides that the Silver Star is awarded to a person who, while serving in any capacity with the United States Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.

12. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing 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 pamphlet indicates that the applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation, the Republic of Vietnam Civil Actions Honor Medal – First Class (RVNCAHM-FC) Unit Citation, the Presidential Unit Citation (PUC) and the Meritorious Unit Commendation (MUC) for the period he was assigned. Additionally, he participated in five campaigns, which entitles him to one silver service star for wear on his already awarded VSM.

13. Army Regulation 672-5-1, in effect at the time, also established the criteria for award of the Army Good Conduct Medal (AGCM). It states, in pertinent part, that the AGCM was established by Executive Order 8809, 28 June 1941 and was amended by Executive Order 9323, 1943 and by Executive Order 10444, 10 April 1953 and is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service. The regulation also states, in pertinent part, that for first award only, upon termination of service on or after 27 June 1950, a period of service of less than 3 years but more than 1 year qualifies for award of the AGCM.

14. Title 10, United States Code, Section 1130, provides, in pertinent part, that the statute of limitations on submissions for recommendations for awards for the Vietnam War was 24 October 1975. However, the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law. The law also requires that a request for awards not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester. Individuals must submit a Department of the Army Form 638 (Recommendation for Award), which clearly identifies the individual's unit, the period of assignment and the award being recommended. It must also include a narrative of the actions or period for which recognition is requested and should have sworn affidavits, eyewitness statements, certificates and any other related documents which support the request. Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.

15. Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available to them.

CONCLUSIONS:

1. Although there is no doubt that the applicant was wounded/injured while serving as a military policeman in Vietnam on 30 January 1969, by the applicant's own admission, he was wounded by an exploding grenade that was thrown by an American soldier, suspected to be a deserter, whom he was trying to apprehend.

2. Accordingly, he does not qualify for award of the Purple Heart because his wounds were not related to or caused by enemy action.

3. In regards to his contention that he was recommended for award of the Silver Star, the Board can find no evidence that he was in fact recommended for award of the Silver Star, also an award given for gallantry in action against an enemy of the United States. The Board will not adjudicate this issue at this time because the applicant has not exhausted his administrative remedies on this issue. He is not precluded from reapplying to the Board once he has exhausted his administrative remedies and can show evidence of such to the Board.

4. However, the evidence of record does establish that he is entitled to awards of the RVNGC w/Palm Unit Citation, the RVNCAHM-FC Unit Citation, the MUC, the PUC and one silver service star for wear on his already awarded VSM.

5. After carefully examining the applicant’s record of service, the Board has determined that the applicant should have received the AGCM for his service from 10 January 1967 through 3 September 1969. This conclusion is based on the fact that the record is void of any derogatory information, which would preclude the applicant from being awarded the AGCM, and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving the award.

6. The Board found that the applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served. Therefore, in the interest of justice, the Board determined that this error should be corrected and the applicant should receive the AGCM at this time.

7. 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 by awarding the individual concerned the AGCM for the period of 10 January 1967 through 3 September 1969, the RVNGC w/Palm Unit Citation, the RVNCAHM-FC Unit Citation, the MUC, the PUC and one silver service star for wear on his already awarded VSM.

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

BOARD VOTE:

__rd ____ __sac___ __rld ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080933
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 53	107.0007/SS
2. 61	107.0015/PH
3. 77	107.0031/PUC
4. 80	107.0034/MUC
5. 102	107.0056/AGCM
6. 140	107.0094/RVNGC