RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060009401 


	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



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, award of the Purple Heart. 

2.  The applicant states, in effect, that he earned the Purple Heart and it is not recorded on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He believes it should be recorded on his DD Form 214 because of his service-connected condition.  He was drafted into the Army and served from 1966 to 1968.  He served with the 64th Quartermaster and the 
538th Transportation during the Tet offensive.  In October 1967, about 6 months after he arrived in Vietnam, he was driving a truck in a convoy when he was rear-ended by a truck being driven by a Vietnamese man with a weapon.  He believes the man was going to kill him.  Another Soldier was able to take the weapon from the man and he was held until the military police arrived.  The applicant also states that he has arthritic spires [sic], arthritic spurs, as a result of the accident and reoccurring nightmares about the man.

3.  The applicant also states, in effect, that while in Saigon, he and a sergeant, a friend, were waiting for his fuel truck to be refueled when they were hit by mortars. The friend went into a building and he went to get him.  The friend was knocked out and he was helping him back to the tanker and as they reached the tanker they were blown away from the tanker and his right wrist was broken.  He has a very weak wrist and chronic arthritis.  He was sent back to the states a month early because he was not able to do much with the broken wrist.

4.  The applicant provides copies of his DD Form 214, a letter from a former service member, and his photograph, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 October 1968, the date of his release from active duty.  The application submitted in this case is dated 22 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 he was inducted into the United States Army, in pay grade E-1, on 20 October 1966.  He completed basic and advanced individual training and was assigned military occupational specialty 64B, heavy vehicle driver.

4.  His records contain Special Order Number 331, dated 4 December 1966, that show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  This award is not shown on his DD Form 214.

5.  His records show that he served in the Republic of Vietnam from 25 March 1967 through 24 March 1968, with the 538th Transportation Company, for three campaigns.

6.  He was released from active duty, in pay grade E-4, on 18 October 1968, and transferred to the United States Army Reserve (USAR) Annual Training.

7.  Entries on his DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) list the following awards:  the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with Device 60, and the Good Conduct Medal.  The Purple Heart and his three bronze service stars are not listed.  

8.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that show he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 (Enlisted Qualification Record) does not show any entry in item 40 (Wounds) or list the Purple Heart in item 41 (Awards and Decorations).  Item 41 shows he was also awarded two Overseas Service Bars and they are not listed on his DD Form 214.

9.  He was discharged from the USAR for Expiration of Term of Service on 
19 October 1972.

10.  The Vietnam Casualty Roster does not show the applicant’s name and there are no medical treatment records available to show how or when he might have been wounded or injured.

11.  The applicant submits a letter in which a former service member states that he served alongside the applicant while assigned to the 538th Transportation Company.  He remembers the accident that occurred in October 1967 when the applicant was rear ended by a Vietnamese truck driver.  The truck driver pulled his rifle on the applicant but the shot gunner riding with the applicant disarmed the Vietnamese man and held him at gunpoint until the military police arrived.  He also remembers that the applicant was in Saigon in February 1968 at the fuel depot when the platoon came under missile and small arms fire.  The applicant's wrist was broken while trying to save other Soldiers.  The former service member also states that he was proud to have served alongside the applicant in Vietnam. 

12.  The applicant also submits a photograph of himself shown with a cast on his right wrist.

13.  Army Regulation 600-8-22 (Military Awards) 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.  The regulation also states that the Purple Heart is not governed by the statute of limitations.

14.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment with the 538th Transportation Company, it was cited for award of the Meritorious Unit Commendation, by Headquarters, Department of the Army General Order Number 28, dated 1969. 

15.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the United States Army Vietnam.

16.  Army Regulation 600-8-22 provides the Army policy on awards.  It provides, in pertinent part, that bronze service stars are authorized for wear on the Vietnam Service Medal to denote a Soldier's campaign participation.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded or injured in action.  Careful consideration was given to the statement submitted by the applicant.  However, given the lack of any corroborating evidence of record or evidence from other independent sources, the statement alone is not sufficient to meet the regulatory burden of proof necessary to support that the applicant was wounded or treated for wounds as a result of hostile action and entitled to award of the Purple Heart.

2.   The evidence of record confirms that the applicant is entitled to award of the Marksman Marksmanship Qualification Badge with Rifle Bar, two Overseas Service Bars, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and three bronze service stars to be affixed on his Vietnam Service Medal.  These awards are not shown on the applicant's DD Form 214.

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 October 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 October 1971.  The applicant did not file within the 3-year statute of limitations.  However, since award of the Purple Heart is not governed by a statute of limitation, it is appropriate to waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RDG__  _JCR ___  _DKH___  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 to show award of the Purple Heart.

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 to show award of the Marksman Marksmanship Qualification Badge with Rifle Bar, two Overseas Service Bars, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal, and by providing him a correction to his separation document that includes these awards.




      ___
                CHAIRPERSON




INDEX

CASE ID
AR20060009401
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY w/NOTE
REVIEW AUTHORITY

ISSUES         1.
107.00
2.
107.15
3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060009401


6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508