RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060006466 


	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. Paul Wright

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. David K. Haasenritter

Member

Mr. Ronald D. Gant

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 award of the Purple Heart with Oak Leaf Cluster for a mortar wound injury in Vietnam resulting in a surgically altered anus and a second award of the Purple Heart for frostbite to toes and foot while in combat in Korea.

2.  The applicant states he is a retired Regular Army (RA) Soldier.  He served in Korea in 1959 and suffered frostbite to his toes.  He served in Vietnam in 1966-1967 and suffered a "mortar round injury [resulting in a] surgically altered anus."

3.  The applicant provides no evidence; however, he refers the Board to military records from the office of the Phoenix (AZ) Department of Veterans Affairs.  The documents were not attached to his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 August 1974.  The application submitted in this case is dated 21 April 2006.

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 available records indicate the applicant originally enlisted in the U.S. Navy from 13 January 1953 to 15 July 1955.  He was a member of the Army National Guard from 15 November 1955 to 4 August 1956.

4.  On 21 February 1957, the applicant enlisted in the Regular Army and served continuously until he was retired on 31 August 1974 with 20 years and 13 days of active duty time and 8 months and 20 days of inactive service time.  


5.  The available records show he served in Korea from 10 September 1958 until 7 October 1959.  Records also show he served two tours of duty in Vietnam from 13 December 1965 to 14 January 1966 and from 23 September 1970 to 17 September 1971.  Additionally, he had tours of duty in Germany, Guam, and Japan.

6.  Historical records show the Korean War started on 25 June 1950 and lasted until 27 July 1953 when a cease fire was negotiated and signed.  The Korean War Casualty File listed all casualties occurring during that period; the applicant's name, for obvious reasons, does not appear in the Korean War Casualty File.

7.  The applicant's name does not appear on the Vietnam Casualty List as having been wounded during the Vietnam War.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows no entry of any wounds.  Additionally, there are no orders in his Official Military Personnel File (OMPF) showing he was awarded the Purple Heart.

8.  The applicant's retirement physical examination, Standard Form 88 (Report of Medical Examination), makes no mention of any wounds.  In the other portion of his retirement physical, Standard Form 89 (Report of Medical History), the applicant, himself, makes no mention of wounds.  His statement indicates he had surgery for hemorrhoids in 1968 while stationed in Germany.  Standard Form 600 (Chronological Records of Medical Care) indicates the applicant was brought in from the field complaining of painful hemorrhoids on 1 May 1968.  The applicant's medical records for his service during Korea are unavailable.  It is presumed that they were transferred to the Department of Veterans Affairs even though his OMPF contains his later medical records which apparently were not transferred.

9.  Army Regulation 600-8-22 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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

10.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. 
Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

11.  While award of the Purple Heart for frostbite injuries is currently prohibited, such injuries were previously a basis for the award.  Army Regulation 600-45 (Decorations), which governed the award of Army decorations until 23 August 1951, stated that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  An “element” pertains to weather and the award of this decoration to personnel who were severely frostbitten while actually engaged in combat is authorized.  

12.  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 show the unit to which the applicant was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 20 July 1965 to 28 March 1973 by Department of the Army General Orders 8, dated 1974.  Additionally, his unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period
1 December 1967 to 1 November 1970 by Department of the Army General Orders 6, dated 1974.

13.  Army Human Resources Command Message (Date Time Group 9 February 2004) published implementing instructions for award of the Korea Defense Service Medal.  This message specified criteria for the award of the Korea Defense Service Medal as follows:  a) service members of the armed forces must have served in support of the defense of the Republic of Korea from 28 July 1954 through a future date to be determined by the Secretary of Defense;  b) the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, and all air spaces above the land and water areas;  c) service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility and have been physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not serve in the Korean War, therefore, he is not eligible for a Purple Heart based on his post-Korean War service in that country.


2.  The applicant's name does not appear on the Vietnam Casualty Listing as having been wounded as a result of hostile fire action.  Item 40 (Wounds) of his DA Form 20 shows no entry of wounds received.  Item 41 (Awards and Decorations) shows no entry for the Purple Hearts or cites orders.  The applicant audited this form on 23 October 1973 as being correct.  Additionally, the applicant's retirement physical makes no mention of any wounds.  Further, the applicant has not supplied dates for the wounds he alleges or any pertinent details, circumstances, or witness statements to support his claim.

3.  The Board notes that the applicant authenticated all of his DD Forms 214 throughout his military career as being correct.  His retirement DD Form 214 of 31 August 1974, possibly the most important one, was authenticated by him as being correct.  As a Sergeant First Class (E-7), he should have questioned why this document did not show the award of two Purple Hearts.  Additionally, the applicant has not given a reason why he did not apply while he was still on active duty to the U.S. Army Human Resources Command, Alexandria, Military Awards Branch to have the Purple Hearts authorized.

4.  Medical evidence of record shows the applicant's "surgically altered anus" was as a result of hemorrhoids.

5.  General Orders show the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his records to show award of this foreign unit award.

6.  General Orders show the applicant is entitled to award of the Republic of Vietnam Civil Actions Medal First Class Unit Citation.  Therefore, he is entitled to correction of his records to show this award.

7.  The applicant served within a time frame authorized for award of the Korea Defense Service Medal.  Therefore, he is entitled a correction of his records to reflect this award and to have it added to his DD Form 214.

8.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.


9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
30 August 1977.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact there is no time limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jcr___  __dkh___  __rdg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by adding the Republic of Vietnam Gallantry Cross with Palm Unit Citation; the Republic of Vietnam Civil Actions Medal First Class Unit Citation; and the Korea Defense Service Medal to his DD Form 214 of 31 August 1974.



							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060006466
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0094
3.
107.0095
4.
107.0141
5.

6.