RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060011080 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

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.

2.  The applicant states that he sustained a back injury during an enemy engagement in Vietnam.  He contends that as his company was disembarking a landing carrier they came under heavy enemy fire, that a mortar round detonated close by him, and that he was tossed in the air and landed on his back on the metal ramp.  He states that he was totally immobilized, unable to move, and that he was evacuated to a hospital in Saigon.  He further states that he was permanently retired because of his back injury.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge); discharge orders; several 2003 Department of Veterans Affairs (DVA) medical records; a DVA Rating Decision, dated 30 December 2003; and a 2003 medical report from the Orthopaedic and Spine Institute of the Low Country in Beaufort, South Carolina.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 29 July 1969.  The application submitted in this case is dated 30 July 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 entered active duty on 9 February 1968 as a second lieutenant.  
4.  In June 1968, the applicant injured his back from a fall during ranger training.  A Medical Evaluation Board (MEB) diagnosed him with spondylolisthesis, Grade III, L5 on S1 and found him unfit for duty.  He was referred to a Physical Evaluation Board (PEB).  The PEB found him fit for duty on 9 September 1968.

5.  The applicant arrived in Vietnam on 30 December 1968.  He served as a platoon leader assigned to Company D, 4th Battalion, 12th Infantry of the 199th Infantry Brigade in Vietnam from 2 January 1969 until he was evacuated to Japan on 17 March 1969 for medical treatment.  
6.  An MEB, dated 7 April 1969, states, in pertinent part, that the applicant was being evaluated for a serious congenital anomaly in the lower back and that he was evacuated from Vietnam because he was unable to perform his duties.  He was diagnosed with spondylolisthesis, Grade III or severe.  There is no mention of any injury in Vietnam as the result of hostile action.   

7.  On 29 July 1969, the applicant was permanently retired in the grade of first lieutenant by reason of physical disability (due to spondylolisthesis). 

8.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with Device 1960 as authorized awards.

9.  There are no orders for the Purple Heart in the applicant’s service personnel records.

10.  The applicant's name does not appear on the Vietnam Casualty Roster.

11.  In support of his claim, the applicant provided a 2003 DVA medical record which shows he reported that he injured his back a second time in Vietnam when a mortar round detonated close by and threw him in the air and he landed on a ramp.  He also provided a medical report, dated 8 October 2003, which states, in pertinent part, “From the records that I am supplied, …. He had a second injury to his lower back when he was disembarking a landing craft on a river bank.  A mortar round detonated close by, and threw the patient into the air.  He landed with his back across a metal rack.”  

12.  Records show the applicant participated in two campaigns during his assignment in Vietnam.

13.  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 the applicant's unit is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 51, dated 1971.

14.  Department of the Army Pamphlet 672-3 also shows that the applicant’s unit is entitled to award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 51, dated 1971.

15.  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.  

16.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records which shows that the applicant was wounded or injured as a result of hostile action in Vietnam.  Medical evidence of record shows that the applicant injured his back while in ranger training not in Vietnam.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the DVA documentation and the 8 October 2003 medical report provided by the applicant are not sufficient as a basis for an award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base an award of the Purple Heart in this case.  

2.  The applicant participated in two campaigns during his assignment in Vietnam which entitles him to award of two bronze service stars for wear on his Vietnam Service Medal.

3.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.

4.  Evidence shows that the applicant’s records contain administrative errors which do 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.

5.  Records show the applicant should have discovered the alleged error now under consideration on 29 July 1969; therefore, the time for the applicant to file a request for correction of any error expired on 28 July 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 fact there is no statute of limitations on requests for award of the Purple Heart.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

MT_____  __JH____  _DL_____  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 concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and two bronze service stars for wear on his already-awarded Vietnam Service Medal.


__Marla Troup________
          CHAIRPERSON




INDEX

CASE ID
AR20060011080
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0000
3.

4.

5.

6.