RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060015621 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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 item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awards or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected.

2.  The applicant states, in effect, omissions of the Purple Heart, Marksman Marksmanship Badge with Rifle Bar, Expert Marksmanship Badge with Rifle Bar, Air Medal with numeral 4 and "V" Device, and other awards/medals are missing.

3.  The applicant provides a copy of his DD Form 214; a letter from the National Personnel Records Center, St. Louis, Missouri, dated 17 October 2005; a copy of a Western Union message, dated 29 March 1969; and a copy a DA Form  
20 (Enlisted Personnel Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on  
1 March 1970.  The application submitted in this case is dated 26 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 records show that he entered active duty on 24 July 1967.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 67N2O (UH-1 Helicopter Repairer).

4.  He served with 150th Transportation Detachment, in the Republic of Vietnam from 19 March 1968 to 14 November 1968.  Also, he served with 175th Air Assault Helicopter Company from 15 November 1968 to 26 February 1970.

5.  Item 24 of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the Air Medal "V" Device Oak Leaf Cluster.  However, it does not show the award of the Purple Heart, Air Medal with numeral 4 and "V" Device, Marksman Marksmanship Badge with Rifle Bar, or the Expert Marksmanship Badge with Rifle Bar.

6.  There are no orders in the applicant's records to show award of the Purple Heart.

7.  Item 40 (Wounds) of the applicant's DA Form 20 shows no entry.

8.  There are no medical records in the applicant's official military personnel file to show he was injured as a result of hostile action or to show he was treated for an injury sustained as a result of hostile action.

9.  However, a Western Union message, dated 29 March 1969 states that the applicant was a crew chief on a military aircraft when he was slightly wounded in action in Vietnam on 23 March 1969 by a misfire from his weapon.  He received cuts and powder burns to the right side of his face.  The wound was sustained as a result of ammunition exploding in the barrel of his M-60 machinegun as the applicant fired at a hostile force during a combat support mission.

10.  A review of the Republic of Vietnam Casualty Files does not show the applicant's name listed among those wounded.

11.  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 by a medical officer, and the medical treatment must have been made a matter of official record.  This regulation also provides that there are no time limitations on requests for award of the Purple Heart.

12.  Army Regulation 600-8-22, paragraph 2-8f states, in pertinent part, that when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the applicant was participating in direct or indirect combat operation is a necessary prerequisite, but is not sole justification for award.  Paragraph 2-8h(7) of this same regulation states, in pertinent part, 


that an example of an injury or wound which clearly does not qualify for award of the Purple Heart is an accident, to include explosive, aircraft, vehicular, and other accidental wound not related to or caused by enemy action.

13.  Review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.

14.  Headquarters, U.S. Army Transportation School Special Order Number  
25, dated 5 February 1968, shows that the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.

15.  Headquarters, U.S. Army Transportation School Special Order Number  
30, dated 12 February 1968, shows that the applicant was awarded the Aircraft Crewman Badge.

16.  Headquarters, 1st Aviation Brigade General Orders Number 1704, dated  
20 March 1970, shows that the applicant was awarded the Air Medal Fourth Award with "V" Device.

17.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows that the 150th Transportation Detachment was cited for an award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Order Number 46, dated 1969; and the 175th Aviation Company was cited for an award of the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation based on Department of the Army General Order Number 42, dated 1972.

19.  The applicant's records show that he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.

20.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the TET Counteroffensive (30 January 1968 - 1 April 1968); Vietnam Counteroffensive, Phase IV (2 April 1968 – 30 June 1968); Vietnam Counteroffensive, Phase V (1 July 1968 – 1 November 1968); Vietnam Counteroffensive, Phase VI (2 November 1968 – 22 February 1969); TET 
69 Counteroffensive (23 February 1969 – 8 June 1969); Vietnam Summer-Fall 1969 (9 June 1969 – 31 October 1969); and the Vietnam Winter-Spring 1970 
(1 November 1969 – 30 April 1970).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign and that a silver service star is authorized in lieu of five bronze service stars.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his records be corrected to show award of the Purple Heart, Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Badge with Rifle Bar, Air Medal with numeral 4 and
"V" Device, and other awards/medals.

2.  The evidence shows that the applicant was a crew chief on a military aircraft when he was slightly wounded in action in Vietnam on 23 March 1969 by a misfire from his own weapon.  He received cuts and powder burns to the right side of his face.  The wound was sustained as a result of ammunition exploding in the barrel of his M-60 machinegun as the applicant fired at hostile force during a combat support mission.

3.  Unfortunately, the incident is accidental.  An injury or wound which clearly does not qualify for award of the Purple Heart is an accident, to include explosive, aircraft, vehicular, and other accidental wound not related to or caused by enemy action.  Therefore, the applicant is not entitled to correction of his records to show the award of the Purple Heart.

4.  Records show he is entitled to the first award of the AGCM for the period  
24 July 1967 to 1 March 1970 based on completion of a period of qualifying service of less than three years, but more than one year, ending with the 
termination of a period of Federal military service.  His records do not contain any 
adverse information and he received conduct and efficiency ratings of “excellent” throughout his service.  Therefore, he is entitled to correction of his records to show this award.

5.  Orders show that the applicant was awarded the Air Medal Fourth Award with "V" Device.  Therefore, he is entitled to correction of his records to show this award.  Also, it would be appropriate to remove the award of the Air Medal with "V" Device Oak Leaf Cluster from item 24 of the applicant's DD Form 214.

6.  Orders show that the 150th Transportation Detachment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the 175th Aviation Company was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his records to show these foreign unit awards.

7.  Orders show that the applicant was awarded the Aircraft Crewman Badge.  Therefore, he is entitled to correction of his records to show this award.

8.  Orders show that the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  Therefore, he is entitled to correction of his records to show this award.

9.  Once the Expert Marksmanship Qualification Badge with Rifle Bar was awarded, it took precedence over the Marksman Marksmanship Qualification Badge with Rifle Bar.  Therefore, the applicant is not entitled to corrections of his records to show the Marksman Marksmanship Badge with Rifle Bar in item 24 of the applicant's DD Form 214.

10.  Evidence of records show that the applicant was assigned to the Republic of Vietnam during seven campaigns.  Therefore, he is entitled to correction of his records to show two bronze service stars and one silver service star to be affixed to his Vietnam Service Medal.

11.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
28 February 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it is appropriate to waive failure to timely file based on the fact there are no time limitations on requests for award of the Purple Heart.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the available evidence presented was sufficient to warrant a recommendation for full relief and to excuse failure to timely file.  The accidental discharge of the M60 occurred while the individual was directly engaged with a hostile enemy force.  Army Regulation
600-8-22, paragraph 2-8h(7) states that wounds resulting from accidents… not related to enemy action… do not qualify for award of the Purple Heart.  The individual was directly engaged with the enemy when wounded as a result of this weapon malfunctioning.  The Board’s interpretation is that this meets the intent for the award of the Purple Heart.  As a result the Board determined that the overall merits of this case are sufficient as a basis for correction of the records of the individual concerned to show award of the Purple Heart for wounds received in action on 23 March 1969.

2.  The Board further determined that administrative error in the records of the individual concerned should be corrected.  Therefore, the applicant is entitled to award of the:

a.  AGCM first award for the period 24 July 1967 to 1 March 1970, Air Medal Fourth Award with "V" Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Aircraft Crewman Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and two bronze service stars and one silver service star to be affixed to the Vietnam Service Medal; and

b.  remove the Air Medal with "V" Device Oak Leaf Cluster from item 24 of the applicant's DD Form 214.




___________Yolanda Maldonado_________
          CHAIRPERSON




INDEX

CASE ID
AR20060015621
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070515
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.