RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
	DOCKET NUMBER:  AR20050000936 


	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. Yvonne Foskey

Analyst

The following members, a quorum, were present:


Mr. Melvin H. Meyer

Chairperson

Mr. John T. Meixell

Member

Mr. James B. Gunlicks

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests in effect, award of the Purple Heart (PH). 

2.  The applicant states the PH he was awarded was never added to his record and separation document (DD Form 214).  

3.  The applicant provides a copy of his DD Form 214 and PH Certificate in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 15 May 1970, the date of his separation from active duty.  The application submitted in this case is dated 4 January 2005.

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 limitations 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 records show that he was inducted into the Army and entered active duty on 16 May 1968.  He completed basic training and advanced individual training, and was awarded military occupational specialty 11B 
(Light Weapons Infantryman).

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 21 October 1968 through 10 April 1969, and that he was assigned to Company E, 4th Battalion, 3rd Infantry Regiment, 11th Brigade.  


5.  Item 38 of the applicant’s DA Form 20 shows that he received "Excellent" conduct and efficiency ratings at each of his active duty assignments.  Further, his Military Personnel Records Jacket (MPRJ) contains no derogatory information and there is no documented record of a disqualification from any of the applicant's active duty commanders that would have precluded him from receiving the Army Good Conduct Medal (AGCM).  

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a Casualty Roster and Western Union telefax, both dated 26 January 1969.  These documents show he received a fragment wound to the right earlobe while engaged in combat with a hostile force in the RVN on 9 March 1969.  It also contains a Casualty Roster, dated 11 March 1969 and Western Union telefax, dated 12 March 1969, which shows he received a gunshot wound to the left shoulder and fragment wound to the upper lip while engaged in combat with a hostile force in the RVN on 9 March 1969.

7.  On 15 May 1970, the applicant was honorably released from active duty (REFRAD), by reason of expiration of term of service.  The DD Form 214 he was issued at the time confirms he completed a total of 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal, Marksman Qualification Badge with Rifle Bar (M-16), Expert Qualification Badge with Rifle (M-14) and Combat Infantryman Badge.

8.  The applicant provided a copy of his PH Certificate that shows he was awarded the PH for wounds he received while in action in the RVN on 9 March 1969.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the PH 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.  


10.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM 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, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that during his tenure of assignment, the applicant’s unit (Company E, 4th Battalion, 3rd Infantry Regiment, 11th Brigade) received the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was carefully considered and found to have merit.  By regulation, in order to support award of the PH, there must be evidence to show a member was wounded in action, was treated for the wound and a record of this treatment must have been made a matter of official record.  

2.  In this case, the applicant’s record includes casualty reports and Western Union telefax documents that confirm he was wounded in action in the RVN on
9 March 1969.  As a result, the regulatory burden of proof necessary to support award of the PH has been satisfied.  Therefore, it would be appropriate to award him the PH and to add this award to his record and separation document at this time.  

3.  The applicant's record confirms he received "Excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or a specific disqualification by any of the active duty unit commanders for whom he served.  As a result, it would be appropriate to award him the first award of the AGCM, for his qualifying period of honorable active duty service from 6 January 1967 through 23 December 1968.  

4.  The record also confirms that based on his service in the RVN, he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Thus, it would also be appropriate to add this award to his record at this time.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 May 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
14 May 1973.  Although the applicant did not file within ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statue of limitations on requests for award of the Purple Heart.

BOARD VOTE:

___MHM_  ___JTM _  __JBG__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart and Army Good Conduct Medal; by showing he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and by providing him a corrected separation document that includes these awards.  




____Melvin H. Meyer_______
          CHAIRPERSON



INDEX

CASE ID
AR20050000936
SUFFIX

RECON

DATE BOARDED
2005-08-16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1970/05/15
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Expiration Term of service
BOARD DECISION
GRANT PLUS
REVIEW AUTHORITY
Mr. Schneider
ISSUES         1.
107
2.

3.

4.

5.

6.