RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20070000593 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. William F. Crain 

Member

Mr. Dean A. Camarella

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 severely injured while on patrol in the Republic of Vietnam

3.  The applicant provides a one-page continuation sheet in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 July 1971, the date of his transfer to the United States Army Reserve.  The application submitted in this case is dated 27 December 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 was inducted in the Army of the United States on 29 July 1969.  He completed combat basic training and was awarded military occupational specialty (MOS) 11B (Infantryman).  Records also show that the applicant served in the Republic of Vietnam during the period 5 January 1970 to 13 July 1970.  

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show any entries for wounds received.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

6.  The applicant's military medical records show that he sustained a compound fracture to his right mandible when a tree limb fell on him on 5 July 1970.  This injury was determined to have been sustained while in the line of duty.  Medical records do not show that injury sustained on 5 July 1970 was incurred as a result of hostile action.

7.  There are no medical records in the applicant's official military personnel file that show he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.

8.  The applicant records do not contain general orders which authorized him award of the Purple Heart.

9.  The applicant's name is not shown on the Vietnam Casualty Roster.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and 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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

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

12.  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 5, dated 1973.

13.  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 Civil Actions Honor Medal, First Class based on Department of the Army General Orders Number 51, dated 1971

14.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

15.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Winter-Spring 1970, DA Sanctuary Counteroffensive, and the Vietnam Counteroffensive, Phase VII campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  Headquarters, 25th Infantry Division, General Orders Number 9189, dated 25  August 1970, shows that the applicant was awarded the Air Medal for meritorious achievement, while participating in sustained aerial flight, in support of combat ground forces against a hostile force in the Republic of Vietnam during the period 3 February 1970 to 8 May 1970

17.  Headquarters, 25th Infantry Division, General Orders Number 8112, dated 25 July 1970, shows that the applicant was awarded the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam during the period 1 May 1970 to 30 June 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart because of injuries sustained while serving in the Republic of Vietnam.  

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant's name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  General Orders show the applicant was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his separation document.  Therefore, he is entitled to correction of his records to show this award. 

5.  Record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to the Vietnam Service Medal.

6.  Records show the applicant was awarded the Air Medal while serving in the Republic of Vietnam.  Therefore, he is entitled to correction of his records to show this award. 
7.  Records show the applicant was awarded the Army Commendation Medal while serving in the Republic of Vietnam.  Therefore, he is entitled to correction of his records to show this award.

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.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 July 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 July 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 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JTM___  __DAC__  __WFC___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.

2.  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 to show award of the Purple Heart.

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 Republic of Vietnam Gallantry Cross with Palm Unit Citation, three bronze service stars to be affixed to his already-awarded Vietnam Service Medal, the Air Medal, and the Army Commendation Medal.





___John T. Meixell__
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.