RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060013196 


	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:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

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, he was injured while serving in the Republic of Vietnam, in January 1969, and lost his high frequency hearing.  He also states, in effect, that no one submitted the paperwork and he never received award of the Purple Heart.

3.  The applicant provides a 2-page undated document designated "Attachment No. 10" in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 14 April 1971, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 7 September 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 Regular Army (RA) and entered active duty for a period of 3 years on 15 April 1968.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 13A (Field Artillery Basic), effective 23 August 1968.  He was subsequently awarded MOS 13B (Field Artillery Crewman) on 1 July 1969.

4.  The applicant's military service records show he was assigned to B Battery, 5th Battalion, 42nd Artillery in Vietnam from 25 October 1968 through 18 October 1969.  He was honorably REFRAD on 14 April 1971 after completing a total of
3 years net active service.

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 Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Parachutist Badge, Expert Marksmanship Qualification Badge with Automatic Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 2 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 22 October 1968 through 21 October 1969.  Item 39 (Campaigns) of this document shows that he participated in the Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and 11th (now known as the Summer-Fall 1969) Campaign.

7.  The applicant's military service records contain a SF 88 (Report of Medical Examination), dated 5 March 1971, issued at the time of the applicant's separation medical examination.  Item 74 (Summary of Defects and Diagnoses) contains an entry that references Item 71 (Audiometer) and states "High frequency hearing loss.  (3899)  H-3.  Profile Board, Madigan General Hospital Annex, Tacoma, Washington, dated 18 February 1970."  This document is absent any indication that the applicant was injured or wounded while serving in Vietnam as a result of hostile action.

8.  There are no orders in the applicant’s military service 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.

9.  The applicant provides a copy of a 2-page, undated document designated "Attachment No. 10" that the applicant apparently submitted to the Department of Veterans Affairs in support of his disability case.  This document shows, in pertinent part, that the applicant states he became disabled in 1969 when one of the men in his battery shot a round over his head with a 155mm Howitzer cannon.  The applicant also states, in effect, that the man should not have fired the cannon because the applicant was the assistant gunner and it was his duty to pull the lanyard.  The applicant further states, in effect, that he became
100 percent deaf, stayed that way for a month, and should have been taken to the hospital for a thorough medical evaluation for the loss of hearing and mental trauma he was experiencing.

10.  A review of the applicant's military service records reveals that he may be entitled to additional awards that are not shown on his DD Form 214.
11.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists the campaigns for Vietnam.  This document shows that the applicant participated in the following 4 campaigns:  Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and Vietnam Summer-Fall 1969.

12.  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 B Battery, 5th Battalion, 42nd Artillery (Vietnam), the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 8 (1974).

13.  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.

14.  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, including the Vietnam Service Medal.

15.  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.

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.

17.  Paragraph 2-8 (Purple Heart) of the Military Awards regulation also outlines several examples of injuries or wounds which clearly do not qualify for award of the Purple Heart, and provides the following pertinent example, "[a]ccidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action."

DISCUSSION AND CONCLUSIONS:

1.   The applicant contends, in effect, that he is entitled to award of the Purple Heart based on high frequency hearing loss that resulted from his service in Vietnam.

2.  The evidence of record shows that the applicant's high frequency hearing loss is documented in his military service records.  However, the evidence of record indicates that the injury was the result of the accidental firing of a Howitzer by a fellow Soldier; it was not the result of hostile enemy action.

3.  There is no evidence the applicant was awarded the Purple Heart.  There is no medical evidence of record which shows that the applicant was wounded or treated for wounds as a result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  Records show that the applicant served in 4 campaigns in Vietnam.  Therefore, he is entitled to correction of his records to show award of 4 bronze service stars to be affixed to his Vietnam Service Medal.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 April 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
13 April 1974.  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.

7.  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

___JTM__  ___TMR_  ___RMN_  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 concerned 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 Vietnam Service Medal with 4 bronze service stars and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.





_____John T. Meixell____
          CHAIRPERSON




INDEX

CASE ID
AR20060013196
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19710414
DISCHARGE AUTHORITY
AR 635-200, Chapter 2, Section VI
DISCHARGE REASON
Expiration of Term of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.