RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060013579 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Mr. Thomas Ray

Member

Ms. Rea 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 correction of his military records to show award of the Purple Heart.

2.  The applicant states that he should have been awarded the Purple Heart for injuries to his left shoulder in Vietnam.  He contends that on 27 November 1967 he was struck by fragments from an incoming mortar round, that he was treated onsite by the medic, and that he returned to the fight.  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge)

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 16 December 1968.  The application submitted in this case is dated 
14 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 enlisted on 17 December 1965 for a period of 3 years.  He arrived in Vietnam on 26 July 1967.  He served as a cannoneer assigned to Battery A, 3rd Battalion, 319th Artillery of the 173rd Airborne Brigade in Vietnam from 30 July 1967 through 3 January 1968.  He was assigned to Headquarters and Support Battery, 3rd Battalion, 319th Artillery in Vietnam from 4 January 1968 through 14 June 1968.  He was assigned to Battery D, 3rd Battalion, 319th Artillery in Vietnam from 15 June 1968 through 18 July 1968.  On 16 December 1968, the applicant was released from active duty.  

4.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device 1960, the Parachutist Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar as authorized awards.      

5.  There are no orders for the Purple Heart in the applicant’s service personnel records.  Item 40 (Wounds) on his DA Form 20 (Enlisted Qualification Record) is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  On 20 November 1968, the applicant underwent a separation physical examination.  Item 39 (Physician’s Summary and Elaboration of all Pertinent Data) on the applicant’s Standard Form 89 (Report of Medical History), dated 
20 November 1968, states that he was wounded by shrapnel fire in Vietnam (in back). 

7.  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 (3rd Battalion, 319th Artillery) is entitled to the Presidential Unit Citation for actions during the period 
6-23 November 1967 based on Department of the Army General Orders Number 
5, dated 1979.

8.  Department of the Army Pamphlet 672-3 shows the applicant's unit 
(3rd Battalion, 319th Artillery) is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 43, dated 1972.

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Medical evidence of record supports the applicant’s contention that he was struck by fragmentation in his back in Vietnam.  Contemporaneous medical evidence of record states the applicant was wounded by shrapnel fire in Vietnam in his back.  Although the medical evidence of record does not specify the date the applicant was wounded, the applicant contends that he was wounded on 
27 November 1967.  Therefore, the entry on the applicant’s 20 November 1968 Standard Form 89 is accepted as sufficient evidence on which to base award of the Purple Heart in this case.

2.  The applicant’s unit (3rd Battalion, 319th Artillery) was cited for award of the Presidential Unit Citation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.

3.  Records show the applicant should have discovered the alleged error now under consideration on 16 December 1968; therefore, the time for the applicant to file a request for correction of any error expired on 15 December 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:

JM_____  __TR____  __RN____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 Purple Heart for wounds received in action on 
27 November 1967 in Vietnam; and

	b.  amending his DD Form 214 to add the Purple Heart, the Presidential Unit Citation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




___John Meixell_______
          CHAIRPERSON




INDEX

CASE ID
AR20060013579
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0000
3.

4.

5.

6.