RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060013941 


	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. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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, that he sustained a shrapnel wound sometime between the 15th and 30th of May 1969 at An Khe in Vietnam.  The applicant also states that he was treated in the field at the time and his commanding officer (CO) said he would do the paperwork for the applicant's Purple Heart, but the CO was killed in action shortly afterward and before the paperwork was submitted.

3.  The applicant provides a self-authored letter, dated 15 September 2006 and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 2 March 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
2 March 1970, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 15 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 U.S. Army for a period of 2 years on 2 November 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 76A (Supply Clerk).  He was subsequently awarded MOS 76P (Stock Control and Accounting Specialist).

4.  The applicant's military service records show that he was assigned to Headquarters and Headquarters Company, 1st Battalion (Mechanized),
50th Infantry, 173rd Airborne Brigade in Vietnam from 23 May 1969 to 14 June 1969.  He was then assigned to Company C, 1st Battalion (Mechanized),
50th Infantry, 173rd Airborne Brigade (Vietnam) from 15 June 1969 to
27 February 1970.  The applicant was honorably REFRAD on 2 March 1970  after completing a total of 1 year, 11 months, and 24 days 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 National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and
1 Overseas Service Bar.

6.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service), shows that he served in the Republic of Vietnam from 19 May 1969 through 1 March 1970.  Item 39 (Campaigns) of this document shows that he participated in the TET 69 Counteroffensive and a (then) Unnamed Campaign.

7.  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 show 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.

8.  The applicant's military service records contain a Standard Form (SF) 89 (Report of Medical History), dated 2 March 1970, which was completed by the applicant at the time of his medical examination prior to his REFRAD.  Item 33 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted?) contains a check mark under the "No" column.  Item 34 (Have You Ever Consulted or Been Treated by Clinics, Physicians, Healers, or Other Practitioners Within the Past 5 Years?) of the SF 89 contains a check mark under the "No" column.  In addition, the form is absent any entry indicating the applicant was wounded or injured while serving in Vietnam.  This document also shows that the applicant placed his signature on the form indicating "I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge."  Item 39 (Physician's Summary and Elaboration of All Pertinent Data) of the SF 89 contains, in pertinent part, the entry "All EPTS" (i.e., All Existed Prior to Service).  

9.  A review of the applicant's military service records reveal that he may be entitled to additional awards that are not shown on his DD Form 214.

10.  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 3 campaigns:  TET 69 Counteroffensive, Vietnam Summer-Fall 1969, and Vietnam Winter-Spring 1970 campaigns.

11.  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 Battalion, 50th Infantry Regiment (Vietnam), the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 51 (1971).  This document also shows that, at the time of the applicant's assignment, the unit was awarded the Republic of Vietnam Gallantry Cross with Silver Star Unit Citation by Headquarters, Department of the Army, General Orders Number 52 (1971).  This document further shows that, at the time of the applicant's assignment, the unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 42 (1972).

12.  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.

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 Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation is awarded by the Vietnamese government as a unit award for meritorious service.


17.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in pertinent part, states that unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached to and present for duty with the unit for at least 30 consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he sustained a shrapnel wound in May 1969 at An Khe in Vietnam.  However, he provides insufficient evidence in support of his claim.

2.  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.

3.  Records show that the applicant served in 3 campaigns in Vietnam.  Therefore, he is entitled to correction of his records to show the award of
3 bronze service stars to be affixed to his Vietnam Service Medal.

4.  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.

5.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Silver Star Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
1 March 1973.  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.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___PMS__  ___DKH_  ___EEM_  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 3 bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Gallantry Cross with Silver Star Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.




_____  Paul M. Smith_____
          CHAIRPERSON


INDEX

CASE ID
AR20060013941
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/0MDD
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19700302
DISCHARGE AUTHORITY
AR 635-200, Chapter 5, Section VII
DISCHARGE REASON
Overseas Returnee
BOARD DECISION
DENY with note
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.