RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20060016917 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Michael Flynn

Member

Mr. Jeffrey Redmann

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 award of the Purple Heart.

2.  The applicant states that he was treated for a gunshot wound to his back in approximately 1970 in a hospital in Vietnam.

3.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record); a Department of the Veterans Affairs (DVA) Rating Decision, dated 
11 August 2006; and a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 13 August 1971.  The application submitted in this case is dated 30 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 was inducted on 20 August 1969.  He arrived in Vietnam on 
4 October 1970.  He served as a cook assigned to Headquarters and Headquarters Battery, 1st Battalion, 92nd Artillery in Vietnam from 10 October 1970 through 11 August 1971.  On 13 August 1971, the applicant was released from active duty in the rank of specialist five after completing 1 year, 11 months, and 24 days of creditable service with no time lost.  

4.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device 1960, one award of the Overseas Service Bar, and the Expert Marksmanship Qualification Badge with Rifle Bar as authorized awards.  

5.  There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

6.  The applicant's DA Form 20 does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  In support of his claim, the applicant provided a DVA Rating Decision, dated 11 August 2006, which states, in pertinent part, that he was granted service connected disability compensation for residuals, gunshot wound to back (zero percent) effective 17 June 1997.  This rating decision also states, “Service medical records are completely silent for any complaints, treatment or diagnosis of gunshot wound to the back to include your separation examination conducted on August 12, 1971.”

8.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His records do not contain any adverse information and he received conduct and efficiency ratings of “excellent” throughout his service.

9.  Records show the applicant participated in two campaigns during his assignment in Vietnam.

10.  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 the applicant's unit is entitled to the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 54, dated 1974.

11.  Department of the Army General Orders Number 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 
28 March 1973.

12.  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, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 672-5-1, 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 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in General Orders.

14.  Army Regulation 600-8-22, in pertinent part, authorizes 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.  This regulation provides that a silver service star is authorized in lieu of five bronze service stars.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records which shows that the applicant was wounded or injured as a result of hostile action in Vietnam.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the DVA Rating Decision provided by the applicant is not sufficient as a basis for an award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base an award of the Purple Heart in this case.  

2.  The applicant was separated in the rank of specialist five with almost 2 years of creditable active service with no time lost.  It appears the applicant met the eligibility criteria for the first award of the Good Conduct Medal for the period
20 August 1969 through 13 August 1971 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his records should be corrected to show this award.

3.  The applicant participated in two campaigns during his assignment in Vietnam which entitles him to award of the Vietnam Service Medal with two bronze service stars.

4.  The applicant’s unit was cited for the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.  

5.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  

6.  Records show the applicant should have discovered the alleged error now under consideration on 13 August 1971; therefore, the time for the applicant to file a request for correction of any error expired on 12 August 1974.  Although the applicant did not file within the ABCMR's 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 

CD_____  ___MF___  __JR____  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:

	a.  awarding him the first award of the Good Conduct Medal for the period 20 August 1969 through 13 August 1971; and

	b.  amending his DD Form 214 to add the Good Conduct Medal, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars for wear on his 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.  



___Carmen Duncan______
          CHAIRPERSON




INDEX

CASE ID
AR20060016917
SUFFIX

RECON

DATE BOARDED
20070607
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.
107.0000
3.

4.

5.

6.