RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20060013046 


	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 with First Oak Leaf Cluster. 

2.  The applicant essentially states that he stepped on a spike with his left foot and was wounded in action a second time while in Vietnam.  He also states, in effect, that he was put in for his second Purple Heart, but not knowing that he could receive more than one, he told them he had been put in for the Purple Heart for other wounds.  He further states that due to the fact that he was put in for the Purple Heart for his wound to his foot, he would like to receive his second Purple Heart.  

3.  The applicant provides one medical document in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 25 June 1966, the date of his release from active duty.  The application submitted in this case is dated 13 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 was inducted into the Army of the United States on 8 July 1964.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantry), and was reassigned to Fort Riley, Kansas.  After initially serving with Company C, 1st Battalion, 16th Infantry Regiment, 1st Infantry Division, he was reassigned to Company A, 2nd Battalion, 18th Infantry Regiment, 1st Infantry Division on 25 May 1965.  On 25 June 1965, his unit made a permanent change of station to Vietnam.  He was wounded in action on 20 July 1965 when he sustained a shrapnel wound to his left arm.  He returned to the continental United States on 24 June 1966, and on 25 June 1966, he was honorably released from active duty.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

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 with First Oak Leaf Cluster.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) only has the entry for his 20 July 1965 wounding which resulted in his original Purple Heart.  Item 41 (Awards and Decorations) of this same form only shows that he was awarded one Purple Heart.  There are no general orders in the applicant’s military records which show that he was awarded the Purple Heart with First Oak Leaf Cluster.  Further, due to the illegible copies of the Vietnam Casualty Roster, it could not be determined if there was a second entry for the applicant which would entitle him to award of the Purple Heart with First Oak Leaf Cluster.  

5.  The applicant provided a medical document which does not have any information to identify who the records are on, but it will be presumed that this is from the applicant’s service medical records.  This document essentially shows that he had a wound under his right foot cleaned on 10 November 1965, and was to soak his foot in hot water and have no duty.  This document also shows that on 29 November 1965, the applicant still had an infection around his wound.  However, this document does not conclusively show that the applicant’s wound was a result of hostile action by the enemy.  

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 DD Form 214 does not show that he was awarded the Good Conduct Medal.  However, he was awarded the Good Conduct Medal by Headquarters, 1st Infantry Division General Orders Number 1190, dated 13 July 1966.

8.  The applicant’s DD Form 214 does not show that he was awarded the Expert Marksmanship Qualification Badge with Machinegun Bar or Pistol Bar.  However, he was awarded the Expert Marksmanship Qualification Badge with Machinegun Bar by Headquarters, 1st Infantry Division General Orders Number 41, dated 
17 February 1965.  He was also awarded the Expert Marksmanship Qualification Badge with Pistol Bar by Headquarters, 1st Infantry Division General Orders Number 110, dated 5 May 1965.


9.  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 1st Infantry Division, the division was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 37, dated 1970.  This document also shows that at the time of the applicant’s assignment to the 2nd Battalion, 18th Infantry Regiment, this unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 21, dated 1969, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 53, dated 1970.

10.  The applicant served in Vietnam from 25 June 1965 to 24 June 1966; however, his military records do not show that he was awarded the Republic of Vietnam Campaign Medal. 

11.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show 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 Defense Campaign and the Vietnam Counteroffensive Campaign.

12.  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.  It further provides, in pertinent part, that a Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award, an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.

13.  Army Regulation 600-8-22 also provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart with First Oak Leaf Cluster.

2.  While the Board does not doubt the veracity of the applicant’s claim to entitlement to award of the Purple Heart with First Oak Leaf Cluster, there is no evidence which conclusively shows that he was wounded in action a second time.  The fact that the medical document provided by the applicant did not even contain any of his personal information on it is only a mitigating factor; the fact is that this document does not prove by a preponderance of the evidence that his foot wound was a result of hostile action by the enemy.  Regrettably, absent evidence which conclusively shows that he was wounded a second time by hostile action, and that he was treated by medical personnel for a second wound which was made a matter of official record, there is insufficient basis upon which to award the Purple Heart with First Oak Leaf Cluster to the applicant in this case.

3.  General orders awarded the applicant the Good Conduct Medal 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 Good Conduct Medal.

4.  Special orders awarded the applicant the Expert Marksmanship Qualification Badge with Machinegun Bar and Pistol Bar.  Therefore, he is entitled to correction of his military records to show these marksmanship badges.

5.  General orders awarded the Meritorious Unit Commendation to the 1st Infantry Division while the applicant was assigned to the 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 2nd Battalion, 18th 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 served more than 6 months in Vietnam during a qualifying period of service for award of the Republic of Vietnam Campaign Medal.  Therefore, he is entitled to award of the Republic of Vietnam Campaign Medal, and correction of his military records to show this award.

7.  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.

8.  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.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 June 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
24 June 1969.  Although the applicant did not file within the 3-year statute of limitations, it is appropriate to waive failure to timely file based on the fact there are no time limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SW __  ___RD  _  ___DT___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.

2.  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 with First Oak Leaf Cluster.

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 by:

	a.  showing the award of the Good Conduct Medal, and the Expert Marksmanship Qualification Badge with Machinegun Bar and Pistol Bars; 

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

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




______ Sherri Ward__________
          CHAIRPERSON




INDEX

CASE ID
AR20060013046
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070621
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY WITH ADMIN NOTE
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
107.0015.0000 (1st OLC)
2.
107.0056.0000
3.
107.0034.0000
4.
107.0108.0000 (w/Machinegun & Pistol Bars)
5.
107.0094.0000
6.
107.0095.0000
7.
107.0088.0000
8.
107.0073.0000 (add bronze service stars)
9.
110.0400.0000