RECORD OF PROCEEDINGS
        

         IN THE CASE OF
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003089268

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that he be awarded the Purple Heart (PH).

2. The applicant states, in effect, that he was wounded in action while serving in the Republic of Vietnam (RVN). He claims his record shows that he received the Bronze Star Medal (BSM) with Valor (“V”) Device; however, he never received the PH.

3. The applicant provides a copy of the decision signature page of a Department of Veterans Affairs (VA) rating decision in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests, in effect, that the Board award the applicant the PH.

2. Counsel states, in effect, that the applicant has set forth his contentions clearly in his application and that the VA rating decision shows that the applicant was wounded in combat. Counsel states that where reasonable doubt arises with respect to the applicant’s petition, all such doubt should be resolved in favor of the applicant.

3. Counsel provides a statement in support of the applicant’s request.

CONSIDERATION OF EVIDENCE :

1. The applicant is requesting that the error of failing to award him the PH he earned during his tenure on active duty, which ended on 26 September 1968, be corrected. The application submitted in this case is dated 12 March 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant’s record shows that he was inducted into the Army and entered active duty on 19 January 1967. He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he held while serving on active duty was sergeant (SGT).


4. The applicant’s Enlisted Qualification Record (DA Form 20) shows that he served in the RVN from 29 September 1967 through 23 September 1968. During his RVN tour of duty, he was assigned to Troop D, 1st Squadron, 4th Cavalry Regiment, 1st Infantry Division, performing duties as a rifleman and infantry team leader.

5. Item 40 (Wounds) of the applicant’s DA Form 20 is blank, indicating that he was not wounded or injured in action during his tenure on active duty. Item 41 (Awards and Decorations) lists the following awards he earned during his tenure on active duty: National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM); Combat Infantryman Badge (CIB); Air Medal (AM); BSM with “V” Device; two Overseas Bars; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6. The applicant’s Military Personnel Records Jacket (MPRJ) contains no orders or other documents that show he was ever wounded or injured in action, or that he was ever recommended for or awarded the PH.

7. The MPRJ does have on file a copy General Orders (GO) Number (#) 2882, dated 30 March 1968, issued by Headquarters, 1st Infantry Division, RVN. These orders awarded the applicant the BSM with “V” Device for heroism on
2 February 1968. The summary of action contained in these orders outlines the actions for which the applicant received this award; however, it makes no mention of his having been wounded during these events.

8. The MPRJ also has a copy of GO # 10140, dated 24 September 1968, issued by Headquarters, 1st Infantry Division, RVN on file. These orders awarded the applicant the Army Commendation Medal (ARCOM) for meritorious service from October 1967 through August 1968.

9. On 26 September 1968, the applicant was honorably released from active duty after completing a total of 1 year, 8 months, and 8 days of active military service. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the separation document
(DD Form 214) issued to him on that date lists the following awards he earned during his active duty tenure: BSM with “V” Device; CIB; VSM; RVNCM; AM; NDSM; and two Overseas Bars. The applicant authenticated this document with his signature.

10. In connection with the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, which contains the names of those soldiers wounded or injured in action in the RVN. The applicant’s name was not found on this DA list of soldiers who were reported as RVN battle casualties. The applicant’s military medical record was not made available for review.
11. The applicant provides a copy of the decision/signature page of a VA rating decision, this document is undated. It shows the applicant was granted service connection for the residuals of a shrapnel wound to the right knee, left calf, and right eyebrow. It also indicates that the applicant had a scar over the lateral aspect of the proximal right leg just below the knee, a scar over the proximal anteromedial aspect of the left fibula, and a scar with retained fragment in the area of the right upper eyelid. The complete VA rating decision document was not provided, and the extract does not provide facts and circumstances regarding how, when, and where the applicant sustained the injuries in question. Further, it does not indicate whether the applicant’s military medical record supported the VA decision with treatment records for the service connected conditions or if the VA rating decision was based solely on a VA evaluation.

12. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH. It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation. In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer. This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

13. Paragraph 2-13 of the awards regulation contains guidance on the VSM. It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN. Table B-1 contains a list of RVN campaigns. It shows that during the applicant’s tenure of assignment in the RVN, campaign credit was authorized
for the following four campaigns: Vietnam Counteroffensive Phase III;
Vietnam Counteroffensive Phase IV; Vietnam Counteroffensive Phase V; and
TET Counteroffensive 1968.

14. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It confirms that during the applicant’s tenure of assignment in the RVN, his unit (Troop D, 1st Squadron, 4th Cavalry Regiment, 1st Infantry Division) earned the Valorous Unit Award (VUA), RVN Gallantry Cross (RVNGC) with Palm Unit Citation, and RVN Civil Actions Honor Medal (RVNCAHMFC) Unit Citation.

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DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that while he was awarded the BSM with
“V” Device, but never received the PH he was entitled to was carefully considered. However, by regulation, in order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer. This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

2. The orders awarding the applicant the BSM for heroism did not indicate that the applicant was wounded during this encounter in the reason summary of events. Given the applicant received this valor award, it is reasonable to presume that had he been wounded in action the PH would have been awarded at the same time. Further, Item 40 of his DA Form 20 is blank, which indicates he was never wounded or injured in action while serving on active duty. Finally, his name is not included in the DA Vietnam Casualty Roster, the official list of RVN battle casualties.

3. The VA rating decision extract provided by the applicant was carefully evaluated. However, this document is incomplete and while indicating that the applicant was granted service connection for residuals of shrapnel wounds, it provides no indication that this VA rating decision was supported by military medical treatment records, or if it was based solely on the VA evaluation of the applicant and his version of events. Further, this VA document provides no evidence to show that the wounds/injuries for which the VA granted service connection were received as the direct result of or caused by enemy action.

4. Records show that at the latest, the applicant should have discovered the PH error or injustice now under consideration when he was issued his DD Form 214 on the date of his separation, 26 September 1968, therefore, the time for him to file a request for correction of his record regarding this issue expired on
26 September 1971. However, he did not file within the 3-year statute of limitations and he has failed to provide a compelling explanation or evidence to show that it would be in the interest of justice to excuse his failure to file his claim of entitlement to the PH.

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5. Records show the applicant was awarded the ARCOM and that he qualified to receive the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, It further shows that based on his RVN service, he is entitled to the VUA, RVNGC with Palm Unit Citation, RVNCAHMFC Unit Citation, and four bronze service stars with his VSM. Therefore, the absence of these awards from the record is constitutes an administrative error. However, Board action is not required to make the necessary corrections. Thus, administrative correction of the applicant’s record will be accomplished by the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_LEM___ __YM__ __RO____ DENY APPLICATION

1. The Board determined that the evidence presented and the merits of this case are insufficient to warrant the Purple Heart relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.

2. The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the ARBA Support Division-St. Louis administratively correct the records of the individual concerned by: showing that he earned the Army Commendation Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar; that he is entitled to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and four bronze service stars with his Vietnam Service Medal; and by issuing him a corrected separation document that includes these awards.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089268
SUFFIX
RECON
DATE BOARDED	2003/12/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1968/09/26
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Overseas Returnee
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 61	107.0015
2. 46	107.0000
3.
4.
5.
6.