RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012675 


	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.



	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.

2.  The applicant essentially states that he was injured in a two and a half ton truck accident in Vietnam when the truck flipped over due to small arms fire and a land mine.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), relief from active duty orders, and copies of seven photographs in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 21 January 1971, the date of his release from active duty.  The application submitted in this case is dated 28 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 records show that he enlisted in the Regular Army on 
22 January 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 36C (Lineman).  He departed for the Republic of Vietnam on 9 July 1968, and served with the 267th Signal Company during his tour in Vietnam.  He returned to the continental United States on 8 July 1969, and served with Company A, 426th Signal Battalion at Fort Bragg, North Carolina until he was honorably released from active duty on 21 January 1971.  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, and the Republic of Vietnam Campaign Medal.




4.  The applicant’s DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not contain any entries that he was wounded in action.  There are also no orders in his military records which awarded him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.

5.  The applicant provided copies of seven photographs, and essentially stated that he was injured in a two and a half ton truck accident in Vietnam when the truck flipped over due to small arms fire and a land mine.  His service medical records contained a Chronological Record of Medical Care, which essentially corroborated that the applicant was in a two and a half ton truck accident on or about 11 August 1968, and suffered lacerations to the right side of his head, left knee, and right arm.  However, there is no evidence that the truck accident he was in was caused by enemy action.

6.  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.

7.  The applicant’s records show that he served 3 years of continuous active duty service from 22 January 1968 to 21 January 1971.  However, his military records do not show that he was awarded the Good Conduct Medal for this period of service.  Although the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice in March 1970 for driving 12 miles above the designated speed limit on Fort Bragg, North Carolina, there is no other derogatory information in the applicant’s military 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 "excellent" for the entire period of qualifying service, including the time in which he accepted nonjudicial punishment.  He was also not convicted by a court-martial.

8.  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 267th Signal Company, the unit was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 48, dated 1971, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 8, dated 1974.




9.  The applicant’s DD Form 214 shows 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.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-13 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 assignment in Vietnam, the applicant was credited with participating in the Vietnam Counteroffensive Phase V campaign, the Vietnam Counteroffensive Phase VI campaign, the TET 69 Counteroffensive campaign, and the Vietnam Summer-Fall 1969 campaign.

10.  The applicant’s DD Form 214 does not show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  However, he was awarded this marksmanship badge by Headquarters, 426th Signal Battalion, Fort Bragg, North Carolina Special Orders Number 81, dated 21 May 1970.

11.  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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

12.  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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.


2.  While it is clear that the applicant was injured in a truck accident while serving in Vietnam, there is no evidence that conclusively shows that the truck accident in which he was injured resulted from small arms fire and a land mine by the enemy.  Additionally, although the applicant was treated by medical personnel for his injuries from the truck accident, there was no indication that it was a result of hostile action.  Regrettably, absent such evidence, there is insufficient basis for awarding the Purple Heart to the applicant in this case.

3.  Although the applicant accepted nonjudicial punishment in March 1970 for speeding, there is no other derogatory information in the his military records which could be a disqualifying factor for his active duty service from 22 January 1968 to 21 January 1971 for award of the Good Conduct Medal.  Additionally, his conduct and efficiency ratings were "excellent" for the entire period of qualifying service, including the time in which he accepted nonjudicial punishment.  He also had no court-martial convictions.  Therefore, he is entitled to award of the Good Conduct Medal for the period 22 January 1968 to 21 January 1971, and correction of his military records to show the award of the Good Conduct Medal.

4.  General orders awarded the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the 267th Signal Company while the applicant was assigned to this unit.  Therefore, he is entitled to award of the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and correction of his military records to show these unit awards.

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

6.  Special orders awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar, which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Expert Marksmanship Qualification Badge with Rifle Bar.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 January 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
20 January 1974.  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 is no time limitation on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___KW__  __LD____  __EF ___  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 22 January 1968 to 21 January 1971 while serving as a sergeant;

b.  awarding him the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; 

c.  showing four bronze service stars to be affixed to his already awarded Vietnam Service Medal; and

d.  showing the award of the Expert Marksmanship Qualification Badge with Rifle Bar.

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.    




_____ Kenneth Wright________
          CHAIRPERSON




INDEX

CASE ID
AR20060012675
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
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.
107.0034.0000
4.
107.0094.0000
5.
107.0073.0000 (add bronze service stars)
6.
107.0108.0000
7.
110.0400.0000