RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013626 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that he was awarded two awards of the Purple Heart [correctly known as the Purple Heart with 1st Oak Leaf Cluster], the Republic of Vietnam Gallantry Cross, with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation.

2.  The applicant states, in effect, that he served with Company B, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade, as an infantryman and was wounded twice by the enemy.  

3.  The applicant provides a copy of his DD Form 214 and a copy of his rating decision by the VA (Department of Veterans Affairs), dated 3 June 1999, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 November 1970, the date of his release from active duty.  The application submitted in this case is dated 13 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 complete military records for the period 8 November 1968 to 6 November 1970 are unavailable for review.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4. The applicant was inducted on 8 November 1968.  He was trained in military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was promoted to pay grade E-4 on 22 August 1969.  


5.  The applicant served in Vietnam from 19 April 1969 to 31 March 1970.  He continued to serve until he was released from active duty on 6 November 1970.  He was transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training). 

6.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, the Army Commendation Medal (1st Oak Leaf Cluster), the Air Medal, and the Combat Infantryman Badge.  His DD Form 214 does not show any additional awards.

7.  There are no orders in the applicant’s service personnel records which show that he was awarded two awards of the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action on two occasions while serving in Vietnam.

8.  The applicant’s name appears on the Vietnam Casualty List for a wound received on 24 May 1969 during his service in Vietnam as a result of enemy action.  It failed to show that he was listed for any additional wounds.

9.  The applicant provided a copy of his VA Rating Decision, dated 6 March 1999, which shows that he was granted a 0 percent service-connected disability for a scar, left leg with history of shrapnel wound, and for residuals of bamboo injury, right hand.  The Decision indicated, in effect, that the applicant was seen on 24 May 1969, for a small shrapnel wound to his left leg and that he reported to the aid station on 4 January 1970, with a swollen right hand.

10.  An inquiry was made of the U.S. Army Human Resources Command (AHRC)-Alexandria, Awards Branch, for verification of award of the Purple Heart. AHRC was able to verify that the applicant had sustained a hostile wound as a result of enemy action on 24 May 1969, which was not serious but did require hospitalization, per the coding.  However, they were unable to locate any additional wound or injury.

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

12.  The applicant's DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show three bronze service stars to which the applicant is entitled for his campaign participation.

13.  Department of the Army Pamphlet 672-3 shows that the applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, by Department of the Army General Orders (DAGO) Number 51, dated 1971, and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, by DAGO Number 51, dated 1971, while he was assigned to the unit.  These unit awards are not shown on the applicant's DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant sustained a hostile wound as a result of enemy action on 24 May 1969 in Vietnam.  Therefore, he is entitled to correction of his records to show the award of the Purple Heart.

2.  There are no orders officially awarding the applicant two awards of the Purple Heart and there are no medical records available to show that he was treated twice for wounds as a result of hostile action.  The applicant's name is shown on the Vietnam Casualty list only once for a wound he sustained on 24 May 1969.  Therefore, based on the available evidence, there is insufficient evidence to award a second award of the Purple Heart, correctly known as the Purple Heart (1st Oak Leaf Cluster), to the applicant.  

3.  The applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal, with two bronze service stars.  However, he participated in three campaigns and he is therefore, entitled to three bronze service stars to be affixed to the already-awarded Vietnam Service Medal.

4.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, at the time he was a member of the unit.  He is, therefore entitled to correction of his records to show these unit awards.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 November 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 November 1973.  Although the applicant did not file within the ABCMR's 3-year 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:

________  ________  ________  GRANT FULL RELIEF 

__e_____  __LB ___  __MJF__  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 showing that he was awarded the Purple Heart; the Vietnam Service Medal, with three bronze service stars; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation.

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 award of the Purple Heart (1st Oak Leaf Cluster).




______Lester Echols____
          CHAIRPERSON




INDEX

CASE ID
AR20060023626
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19701106
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
GRANT//
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.