RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060008643 


	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.



Director



Analyst


The following members, a quorum, were present:



Chairperson


Member


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, that he be awarded the Purple Heart for being wounded or injured in action in Vietnam. 

2.  The applicant essentially states that the Purple Heart was not awarded to him due to unknown reasons, and that he was told he would receive it when he got back to the United States, but that never happened.  He also states, in effect, that the Department of Veterans Affairs (DVA) initially rejected his compensation claim, but that on appeal they admitted that he was wounded in action with the proof he provided them.  

3.  The applicant provides a DVA Supplemental Statement of the Case in support of this application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 10 October 1968, the date of his release from active duty.  The application submitted in this case is dated 1 June 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 applicant’s military records show that he enlisted in the Regular Army on 
29 October 1965.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 23 April 1966 and primarily served with Company B, 4th Battalion, 23rd Infantry Regiment, 25th Infantry Division.  He departed Vietnam on or about 21 April 1967 and then was reassigned to the
1st Battalion, 39th Infantry Regiment in Germany.  He returned to the continental United States on or about 8 October 1968 and was honorably released from active duty on 10 October 1968.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.
4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show that he was awarded the Purple Heart.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Record) also does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 does not contain any entries which show that he was wounded or injured in action.  There are no general orders in the applicant’s records awarding him the Purple Heart.  There are no medical or dental records which show that he was wounded or injured as a result of hostile action.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.

5.  The applicant provided a DVA Supplemental Statement of the Case, dated 
28 March 2006.  This DVA document stated, in pertinent part, that the applicant furnished copies of his service dental records not previously received by the DVA with his substantive appeal.  This document also stated, in effect, that the records furnished by the applicant to the DVA indicated that on 26 February 1967, the applicant was hit in the face when an armored personnel carrier struck a mine.  This document essentially states that the applicant had his upper and lower anterior teeth wired at the 36th Evacuation Hospital, and that eventually, teeth 1, 2, 4, 5, 6, 7, 9, 10, 11, 13, and 16, were surgically removed, and a full upper denture was prepared.  

6.  The applicant did not provide any copies of his medical or dental records which show that he was wounded or injured in action on or about 26 February 1967.  

7.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

8.  The applicant’s records show that he served 2 years, 11 months, and 12 days of continuous active duty service from 29 October 1965 to 10 October 1968.  However, his DA Form 20 and DD Form 214 do not show that he was awarded the Good Conduct Medal for this period of service.  There is no derogatory information in the applicant’s official records which could be a disqualifying factor for this period of active duty service for award of the Good Conduct Medal. Additionally, his conduct and efficiency ratings were all “Excellent” or “Unknown” during his active duty service.

9.  The applicant’s DD Form 214 does not show that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  However, he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar by Headquarters, 8th Infantry Division Special Orders Number 45, dated 
14 February 1968.  
10.  The applicant’s military records contain special orders which awarded him the Second Class Gunner Marksmanship Qualification Badge with Machinegun Bar.  The Second Class Gunner Marksmanship Qualification Badge was subsequently renamed the Marksman Marksmanship Qualification Badge.  However, this marksmanship qualification badge is not shown on his DA Form 20 or his DD Form 214.  

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, at the time of the applicant’s assignment to the 25th Infantry Division, the division was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 10, dated 1968.  This document also shows that at the time of the applicant’s assignment to the 4th Battalion, 23rd Infantry Regiment, the unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 48, dated 1971, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 51, dated 1971.

12.  The applicant’s records show that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 
600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with 
participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during his tour in Vietnam, the applicant was credited with participating in the
Vietnam Counteroffensive campaign and the Vietnam Counteroffensive Phase II campaign.

13.  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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  This regulation also provides that there are no time limitations on requests for award of the Purple Heart.

14.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “Excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for being wounded or injured in action in Vietnam. 

2.  The DVA Supplemental Statement of the Case provided by the applicant which essentially stated that the applicant was hit in the face when an armored personnel carrier struck a mine is not corroborated by any evidence in the applicant’s records.  While the Board does not doubt that the applicant suffered a facial injury, the DVA Supplemental Statement of the case, which was provided by the applicant and was prepared over 39 years after the fact, does not by itself conclusively show that the applicant’s injury was the result of hostile action.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding the Purple Heart to the applicant in this case.  

3.  Evidence of record shows that the applicant completed 2 years, 11 months, and 12 days of honorable and continuous active duty service from 29 October 1965 to 10 October 1968.  There is no derogatory information in the applicant’s official records which could be a disqualifying factor for this period of active duty service for award of the Good Conduct Medal, and his conduct and efficiency ratings were all “Excellent” or “Unknown” during his active duty service.  Therefore, he is entitled to award of the Good Conduct Medal for the period 
29 October 1965 to 10 October 1968, and correction of his military records to show the award of the Good Conduct Medal.

4.  Special orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Second Class Gunner Marksmanship Badge with Machinegun Bar, which was subsequently renamed the Marksman Marksmanship Qualification Badge with Machinegun Bar.  As these badges are not shown on his DD Form 214, he is entitled to correction of his military records to show the award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Machinegun Bar.
  

5.  General orders awarded the Meritorious Unit Commendation to the 25th Infantry Division while the applicant was assigned to this division.  General orders also awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 4th Battalion, 23rd Infantry Regiment while the applicant was assigned to this unit.  Therefore, he is entitled to award of the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and correction of his military records to show these unit awards.

6.  The applicant participated in two campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

7.  Records show the applicant should have discovered the alleged error now under consideration on 10 October 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 October 1971. 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 partial relief being granted in this case, and the fact that there are no time limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___MT __  __JH____  ___DL __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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:

	a.  awarding him the Good Conduct Medal for the period 29 October 1965 to 10 October 1968 while serving as a sergeant;

	b.  showing the award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Machinegun Bar;   

c.  awarding him the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

	d.  showing two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding the Purple Heart to the applicant.




______Marla Troup________
          CHAIRPERSON




INDEX

CASE ID
AR20060008643
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070221
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
107.0015.0000
2.
107.0056.0000
3.
107.0109.0000
4.
107.0110.0000
5.
107.0034.0000
6.
107.0094.0000
7.
107.0095.0000
8.
107.0073.0000 (add bronze service stars)
9.
110.0400.0000