RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060011793 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 was wounded in the left knee while involved in combat at Fire Support Base Schofield on 24 August 1968 in Vietnam.  The applicant also states, in effect, "[a]s I was trying to get the weapon un-jammed, I felt a hard tug on my left leg.  I did not realize this at the time, but I had been hit as I was rolling over to fix my jammed weapon, when I had exposed myself.  I felt it as it hit me, a round of some kind or shrapnel, but I was fired up for action, I continued to do my job to protect what was left of us."  The applicant further states, in effect, that due to the intensity of the firefight, the Army medic (who he refers to as Doc Lester B____) was extremely busy helping the wounded both during and after the firefight.  The applicant adds, in effect, that he later found the unit's medic at the triage area and "Doc B___ did a quick patch-up job on my knee then promised that he would look at it later, but that never happened."  The applicant states, in effect, that Doc B____ then accompanied patients to the rear.  Several days after the incident, while the applicant was limping by the field aid station, another medic (Sergeant Z__________) offered to look at the wound, but the applicant declined his offer, indicating that he would await the return of Doc B____.  The applicant also states that "Sergeant Z_________ gave me some pain pills and reminded me that if the wound developed into some infection, or anything really worse, to see Doc B____ when he came back and let him take another look at the wound."  The applicant further states that Doc B_____ never returned to the unit, the command post was wiped out so that there was no one to report the incident to, nor did he follow-up since he was off on new military operations.  The applicant concludes by stating, in effect, that he just recently told others about the incident and has been encouraged to pursue award of the Purple Heart for his wound.

3.  The applicant provides a self-authored document titled RVN - February 24, 1968 FSB Schofield and 3 letters from former fellow Soldiers, 2 that are undated and 1 that is dated 5 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 22 August 1970, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 9 August 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 service records show that he enlisted in the U.S. Army for a period of 3 years on 1 September 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 36K (Wireman).  He was subsequently reclassified and awarded MOS 11B (Light Weapons Infantryman).

4.  The applicant's military service records show that he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 27th Infantry from
17 February 1968 to 8 August 1968 and then assigned to Company D,
2nd Battalion, 27th Infantry, 25th Infantry Division (Vietnam) from 9 August 1968 to 14 March 1969.  The applicant requested reassignment and was reassigned to Company D, 51st Infantry, 97th Military Police Battalion (Vietnam) from 16 March 1969 to 7 August 1969.  He was honorably REFRAD on 22 August 1970 after serving on active duty for a total of 2 years, 11 months, and 22 days.

5.  The applicant's DD Form 214, issued at the time of his separation, shows in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and 3 Overseas Service Bars.

6.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service), shows that he served in the Republic of Vietnam from 8 February 1968 through 7 August 1969.  Item 39 (Campaigns) of this document shows that he participated in the Vietnam Counteroffensive Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, and a campaign "To Be Announced."

7.  There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His
DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  The applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.
8.  In support of his application, the applicant provides a copy of a letter from Mr. Guillermo C_______ who states, in pertinent part, that "I did not see him [the applicant] get hit and did not actually see everybody that got wounded or killed that night.  Mr. C_______ also states, in pertinent part, "I know there was lots of shrapnel and bullets flying and if [the applicant] was hit I was not aware of it, nor do I doubt that he was hit."  The letter from Mr. Juan P. Z________ states that he was the senior medic for the 2nd Battalion, 27th Infantry in Vietnam for all of 1968.  Mr. Z________ also states, in pertinent part, that "[the applicant] states that I gave him something for pain to his leg.  I do remember, but being 70 yr old I'm not the young one no more.  Please give him his P.H. [Purple Heart] that he richly deserves."  The letter from Mr. Benjamin E. R_____ provides a description of the events of 24 August 1968 at Fire Support Base Schofield in Vietnam.  Mr. R_____ states that during the firefight he managed to get the applicant into the hole he had dug.  He also states, in pertinent part, that "I seem (sic) Herc [the applicant] the next morning and he seemed agitated.  Ron T_____, [the applicant] and I momentarily talked since being separated.  [The applicant] had a tear in his fatigues and there was a shrapnel wound.  He said that doc B____ has seen it.  [The applicant] then avoided us and went off some place to sleep.  We never spoke about that again. He was limping but said that he had seen another medic so I left it at that."

9.  A review of the applicant's records reveals that he may be entitled to additional awards that are not shown on his DD Form 214.

10.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists the campaigns for Vietnam.  This document shows that the applicant participated in the TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 1969 Counteroffensive, and Vietnam Summer-Fall 1969 campaigns; a total of
6 campaigns.

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 2nd Battalion, 27th Infantry, 25th Infantry Division (Vietnam), the unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number
48 (1971).  This document also shows that at the time of the applicant's assignment, the unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 51 (1971).

12.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.

13.  Army Regulation 600-8-22 provides, in pertinent part, for 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.  This Army regulation also provides, in pertinent part, that a silver service star is authorized in lieu of five bronze service stars.

14.  U.S. Army Vietnam Regulation Number 672-2 (Foreign Awards and Decorations) provided for the processing of foreign awards and decorations presented to individuals and units.  It states, in pertinent part, that the Republic of Vietnam Gallantry Cross Unit Citation was awarded in four degrees:  with Palm, with Gold Star, with Silver Star, and with Bronze Star.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation is awarded by the Vietnamese government as a unit award for meritorious service.

16.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  There is no statute of limitations governing requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he was wounded in combat on 24 August 1968 at Fire Support Base Schofield in Vietnam.

2.  The Board does not dispute the veracity of the applicant's contention, or the statements of the 3 former fellow Soldiers.  However, eyewitness statements alone, gathered approximately 38 years after the date of the incident, provide insufficient evidence to support award of the Purple Heart.


3.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have required treatment by a medical officer and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.

4.  There is no evidence that the applicant was awarded the Purple Heart.  The applicant provides no timely official documentary evidence that supports his contention that he was wounded as a result of hostile action.  Moreover, there is no official documentary evidence in the applicant's military service records that supports his contention that he sustained a wound as a result of hostile action or was treated for a wound by a medical officer.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

5.  Records show that the applicant served in 6 campaigns in Vietnam. Therefore, he is entitled to correction of his records to show award of 1 silver service star and 1 bronze service star to be affixed to his Vietnam Service Medal.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

7.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 August 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
21 August 1973.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

9.  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 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___DKH_  ___LMD_  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.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

3.  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:

	a.  delete the Vietnam Service Medal; and

	b.  add the Vietnam Service Medal with 1 silver service star and 1 bronze service star, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.




____Kathleen A. Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20060011793
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/20
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700822
DISCHARGE AUTHORITY
AR 635-200, SPN 411
DISCHARGE REASON
Early Separation From Overseas
BOARD DECISION
DENY with note
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.