RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060014362 


	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. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 was wounded while serving in Vietnam and was told that he would be awarded the Purple Heart; however, his discharge document does not show the award.

3.  The applicant provides a copy of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 18 June 1971.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 18 June 1971, the date of his release from active duty (REFRAD).  The application submitted in this case is undated, but was received on 12 October 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 was inducted into the U.S. Army and entered active duty on 19 June 1969.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant's military service records show that he was assigned as a rifleman in Company C, 1st Battalion, 2nd Infantry, 1st Infantry Division in Vietnam from 15 December 1969 to 13 January 1970.  He was then assigned as a scout observer with Combat Support, 1st Battalion, 2nd Infantry, 1st Infantry Division (Vietnam) from 14 January 1970 to 22 March 1970.  He was transferred and assigned as a student at the 23rd Administration Replacement Detachment (Vietnam) from 23 March 1970 to 3 April 1970.  He was then assigned as a rifleman in Company C, 1st Battalion, 6th Infantry, 198th Infantry Brigade (Vietnam).  He was honorably REFRAD on 18 June 1971 after completing a total of 1 year, 11 months, and 29 days active service.
5.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service), shows that he served in the Republic of Vietnam from 7 December 1969 through 11 November 1970.  Item 39 (Campaigns) of this document shows that he participated in the Vietnam Winter-Spring 1970 and an (as then) unnamed 13th campaign.

6.  The applicant's DD Form 214, issued at the time of his REFRAD, shows in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded the National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with "1960" Device, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and
2 Overseas Service Bars.

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 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).  In addition, the applicant's name is not listed on The Adjutants General, Casualty Division's, Vietnam Casualty Roster.

8.  The applicant's military service records contain a Standard Form (SF) 88 (Report of Medical Examination), dated 19 June 1969, which was completed at the time of his induction into the Army.  Item 39 (Identifying Body Marks, Scars, Tattoos) of the SF 88 contains an "X" under the "Abnormal" column and in the space to the right of this item the physician entered the notation, "39) Scar R [right] hand; PS [Prior Service] abdomen L [left] rectus [sheath] (i.e., abdominal muscle)."

9.  The applicant's military service records contain a SF 89 (Report of Medical History), dated 27 May 1971, which was completed by the applicant at the time of his medical examination prior to his REFRAD.  Item 31 (Have You Had, Or Have You Been Advised To Have, Any Operations?) of the SF 88 contains a check mark under the "Yes" column and in the space to the right of the item the applicant entered, in pertinent part, "Gun shot wound in stomach."  The SF 88 also shows, in pertinent part, that the attending physician entered the notation, "GSW [Gun Shot Wound] abdomen PTS [Prior To Service]", referenced Item 31, and also indicated, "GSW abdomen Sep '68."  The SF 88 further shows that both the applicant and attending physician affixed their respective signatures to the document.

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

11.  The applicant's records contain a copy of Headquarters, 197th Infantry Brigade, Fort Benning, Georgia, General Orders Number 131, dated 2 June 1971 that show he was awarded the Good Conduct Medal for the period 30 July 1969 to 11 June 1971.

12.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that during his service in Vietnam the applicant participated in the following 3 campaigns:  Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII campaigns.

13.  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 Company C, 1st Battalion, 2nd Infantry Regiment (Vietnam), the unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 53 (1970).  This document also shows that at the time of the applicant's assignment, 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).

14.  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.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Good Conduct Medal is awarded to individuals who distinguish themselves by their exemplary conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  After 27 June 1950 to the present time, the current standard for award of the Good Conduct Medal is 3 years of qualifying service, but as little as one year is required for the first award in those cases when the period of service ends with the termination of Federal military service.  As with all personal decorations, formal recommendation, approval through the chain of command, and announcement in orders are required.


16.  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.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

17.  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 the regulation and states that authorized bronze service stars will be worn on the appropriate service medal, which includes the Vietnam Service Medal.

18.  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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he was wounded while serving in Vietnam.

2.  The evidence of record shows that the applicant sustained a gun shot wound to his abdomen in September 1968, prior to his entry into military service.

3.  There is no medical evidence of record which shows that the applicant was wounded while in action against an enemy or was treated for wounds as a result of hostile action.  In addition, there is no evidence the applicant was issued orders awarding him the Purple Heart.  Moreover, the applicant's records are absent any evidence that he is entitled to award of the Purple Heart.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart.

4. General Orders awarded the applicant the Good Conduct Medal.  Therefore, it would be appropriate to correct his records to show this award.

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

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.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 June 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
17 June 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.

9.  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

___WFC _  ___DLL _  ___RSV _  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 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 Good Conduct Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.




    ___William F. Crain____
          CHAIRPERSON




INDEX

CASE ID
AR200600147362
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/31
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19710608
DISCHARGE AUTHORITY
AR 635-200, Chapter 2, Section VI
DISCHARGE REASON
Expiration of Term of Service
BOARD DECISION
DENY WITH NOTE
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.