RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060016362 


	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:


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 that his records be corrected to show the award of the Purple Heart.

2.  The applicant states, in effect, that he was wounded in the left side by shrapnel during an attack at firebase Mace.  He states that he left Vietnam due to two vicious bouts with malaria.  Also, all of his awards were pending when he was medically evacuated to Japan then to a hospital in Guam.

3.  He was later transferred to Fort Campbell, Kentucky and then to Fort Lewis, Washington.  He states that his health records will show his wounds and treatment for malaria.  He has no other evidence other than his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows he did served in Vietnam as an Infantryman.

4.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 December 1971.  The application submitted in this case is dated  
16 November 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 records show that he entered active duty on 8 June 1970.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B1O (Light Weapons Infantryman).

4.  He served a tour of duty with Company D, 2nd Battalion, 5th Cavalry (Airmobile) in the Republic of Vietnam during the period 27 December  
1970 through 18 July 1971.

5.  His records show he was a patient in the Pacific theater for 11 days, then he was transferred to Fort Campbell, Kentucky and then transferred to Fort Lewis, Washington.  However, there is no evidence to show what he was hospitalized for.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman Badge, Overseas Service Bars, Expert Marksmanship Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Cal).  However, it does not show the Purple Heart.

7.  Item 40 (Wounds) of the applicant's DA Form 20 does not contain any entry.

8.  There are no general orders in the available records which show the applicant was awarded the Purple Heart.

9.  There are no medical records in the applicant's official military personnel file to show he sustained wounds as a result of enemy fire or to show he was treated for wounds sustained as a result of enemy fire.

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

13.  Army Regulation 672-5-1 (Military Awards), in effect at the time when the service member was discharged, required that throughout a qualifying period of service for award of the Good Conduct Medal the enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  This period 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.


14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 42, dated 1972.

15.  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.  

16.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) and Consolidation I, (1 July 1971 to 30 November 1971).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart.

2.  There is no evidence in his available records which shows he was wounded or injured as a result of shrapnel to his left side from hostile action or received treatment by a medical officer for a shrapnel wound.  His name does not appear on the Republic of Vietnam Casualty Files.  Therefore, he is not entitled to the award of the Purple Heart.

3.  Records show he is entitled to the first award of the Army Good Conduct Medal for the period 8 June 1970 to 13 December 1971 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 to show this award.

4.  Orders show that the applicant is entitled to award of the Republic of Vietnam Gallantry Cross Unit Citation.  Therefore, he is entitled to correction of his records to show this foreign unit award.

5.  The applicant was assigned to Vietnam during two campaigns.  Therefore, he is entitled to correction of his records to show two bronze service stars to be affixed to his Vietnam Service Medal.


6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 December 1971.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
12 December 1974.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____rsv__  ___dll___  ___wfc__  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 applicant concerned be corrected by showing award of the, Army Good Conduct Medal (First Award) for the period 8 June 1970 to 13 December 1971, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to the already-awarded Vietnam Service Medal.

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. 




_________William F. Crain__________
          CHAIRPERSON




INDEX

CASE ID
AR20060016362
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT 
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.