RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070001235 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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 on 11 September 1971, while serving as a supply sergeant assigned to Company A, 326th Engineer Battalion in Vietnam, he went into work in the morning, opened his desk drawer and heard a click.  The applicant also states, in effect, that he realized the sound came from a hand grenade so he turned and started to run.  The explosion blew him out of the door and left fragments of the grenade in his body.  The applicant further states, in effect, that he was medically evacuated to the 85th Evacuation Hospital in either DaNang or FuBai.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 20 September 1974; DA Form 20 (Enlisted Qualification Record); Standard Form (SF) 513 (Consultation Sheet), dated
11 September 1971; SF 519-A (Radiographic Report), dated 11 September 1971; and SF 600 (Chronological Record of Medical Care), dated 11 September and 13 September 1971.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 20 September 1974, the date of his discharge from the Army.  The application submitted in this case is dated 16 January 2007.

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 enlisted and entered the Regular Army (RA) on 16 June 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 76Y (Unit Supply Clerk).


4.  The applicant's military service records show that he was assigned overseas in Germany from 5 November 1967 to 28 February 1968.  On 29 February 1968, he reenlisted for reassignment to Vietnam and was assigned to C Battery,
6th Battalion, 33rd Artillery (Vietnam) from 27 May 1968 through 13 April 1969.  He was then reassigned to A Battery, 6th Battalion, 33rd Artillery (Vietnam) from 14 April 1969 through 8 May 1969.

5.  On 20 February 1970, the applicant reenlisted for a period of 6 years and was assigned overseas in Germany from 18 April 1970 to 2 July 1971.  From Germany he was again reassigned to Vietnam.  The applicant was assigned to Company A, 326th Engineer Battalion (Airmobile) in Vietnam from 3 September 1971 to 12 September 1971; assigned to Company B, 326th Engineer Battalion (Airmobile) from 13 September 1971 to 11 December 1971; and assigned to Company C, 326th Engineer Battalion (Airmobile) from 12 December 1971 to
8 February 1972.  On 9 February 1972, he was assigned to the 1st Battalion, 21st Artillery, 3rd Brigade, 1st Cavalry Division and on 20 February 1972 he was further assigned to D Battery, 1st Battalion, 21st Artillery, 3rd Brigade,
1st Cavalry Division until his departure from Vietnam on 16 June 1972.

6.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 25 April 1973.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows that he was awarded the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal (2nd Award), Republic of Vietnam Campaign Medal with “1960” Device, and Vietnam Service Medal.  This document also shows that the applicant was honorably discharged under the provisions of Army Regulation 635-200, Chapter 6 (Dependency).  At the time he had completed 5 years, 10 months, and 10 days total active service.

7.  On 29 November 1973, the applicant enlisted and reentered the RA for a period of 3 years in MOS 76Y (Armorer/Unit Supply Specialist).

8.  The applicant's military service records contain a DD Form 214 (Report of Separation from Active Duty), with an effective date of the 20 September 1974. Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows that he was awarded the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Republic of Vietnam Campaign Medal with “1960” Device, and Vietnam Service Medal with 6 bronze service stars.  This document also shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10 (For the Good of the Service), under honorable conditions.  At the time he had completed 6 years, 8 months, and 2 days total active service.

9.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service), shows that he served in the Republic of Vietnam from 20 May 1968 through 12 May 1969 and from 18 August 1971 through 15 June 1972.  Item
39 (Campaigns) of this document shows that he participated in the Vietnam Counteroffensive Phase IV,  Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Consolidation I, and Consolidation II campaigns.

10.  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).  The applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.

11.  In support of his application, the applicant provides copies of a SF 513 (Consultation Sheet) and SF 519-A (Radiographic Report), dated 11 September 1971, which show, in pertinent part, that the applicant was treated for fragment wounds of the left forearm and left cheek.  The applicant also provides a copy of a SF 600 (Chronological Record of Medical Care), dated 13 September 1971, that offers, in pertinent part, the following clinical report by the attending medical official, “Patient has [_____] for 10 months evidence of a ‘split’ personality.  Submitted 1049 in Germany to come to Vietnam – later denied it until paperwork was [_____] disapproved – Several episodes of doing same [____], giving orders, etc. – later denied by him but evidence to contrary.  Two days ago [treated] here for frag wound – Evacuation initiated; he may have tried to off himself, but he ___ ‘isn’t sure’ whether he did or not.  Wanted to take a ‘bus and go to field’ because he was tired of supply job, etc.”  This document also shows, in pertinent part, that it concludes with the entry, “To 85th Evac Psych Clinic” and is signed by the medical official.

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

13.  The applicant's records contain a copy of Headquarters, V Corps (Vietnam), Special Orders Number 267, dated 24 September 1970, which shows that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

14.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists the campaigns for Vietnam.  This document shows that the applicant participated in the Vietnam Counteroffensive Phase IV,  Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Consolidation I, Consolidation II, and Vietnam Cease-Fire campaigns; a total of 7 campaigns.

15.  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 6th Battalion, 33rd Artillery (Vietnam), the unit was cited for award of the Meritorious Unit Commendation by Headquarters, Department of the Army, General Orders Number 42 (1969).

16.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 326th Engineer Battalion (Vietnam), the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 6 (1974).

17.  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.  There is no statute of limitations governing requests for award of the Purple Heart.

18.  Army Regulation 600-8-22, as amended, provides that the National Defense Service Medal is awarded for honorable active service for any period between
27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

19.  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.

20.  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 this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, which includes the Vietnam Service Medal.  The Awards regulation also provides, in pertinent part, that a silver service star is authorized for wear on the ribbon in lieu of five bronze service stars.

21.  Army Regulation 600-8-22, provides, in pertinent part, that effective
1 March 1961 the Meritorious Unit Commendation was authorized for units and/or detachments of the Armed Forces of the United States for exceptionally meritorious conduct in the performance of outstanding services for at least six continuous months in support of military operations.  

22.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in pertinent part, states that unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or was attached by competent orders to and present for duty with the unit during the entire period or for at least 30 consecutive days of the period cited.

23.  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.

24.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

25.  Army Regulation 670-1, in effect at the time, governs the requirements for the Overseas Service Bar.  In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1, or appropriate Department of the Army message.  For Vietnam service, one Overseas Service Bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the Overseas Service Bar.

26.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214 and contains guidance on the preparation of the DD Form 214.  The Separation Documents regulation states that the source documents for entering information on the DD Form 214 will be the Enlisted/Officer Qualification Record or any other document authorized for filing in the Military Personnel Records Jacket or Official Military Personnel File and, in pertinent part, states to list awards and decorations for all periods of service in the priority sequence specified in the Military Awards regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he was wounded on 11 September 1971 when he sustained fragment wounds from an explosion.  However, the applicant provides insufficient evidence to support his claim that he was wounded while in action against an enemy or as a result of hostile action.

2.  There is no evidence the applicant was awarded the Purple Heart.  There are no medical records which show that the applicant was wounded or injured as a result of hostile action (emphasis added).  There is also no medical evidence of record which shows that he received medical treatment for a wound or injury that was sustained as a result of enemy action (emphasis added).  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  Records show that the applicant served in 7 campaigns in Vietnam.  Therefore, he is entitled to correction of his records to show award of 1 silver service star and 2 bronze service stars to be affixed to his Vietnam Service Medal.

4.  General Orders awarded the applicant's unit the Meritorious Unit Commendation.  Therefore, it would be appropriate to correct his records to show this unit award.

5.  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.

6.  Special Orders awarded the applicant the Marksman Marksmanship Qualification Badge with Rifle Bar.  Therefore, it would be appropriate to correct his records to show this badge.

7.  Records show that the applicant served a total of 22 months in Vietnam.  Therefore, he is entitled to correction of his records to show award of 3 Overseas Service Bars.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 September 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
19 September 1977.  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

___JEA__  ___JAM _  __WFC__  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 concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by:

a.  correcting his DD Form 214, with an effective date of 25 April 1973, by:

(1)  deleting the Vietnam Service Medal; and

(2)  adding the National Defense Service Medal, Vietnam Service
Medal with 1 silver service star and 2 bronze service stars, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Marksman Marksmanship Qualification Badge with Rifle Bar, and 3 Overseas Service Bars.

	b.  correcting his DD Form 214, with an effective date of 20 September 1974, by:

(1)  deleting the Good Conduct Medal and Vietnam Service Medal with
6 campaign stars; and

adding the Good Conduct Medal (2nd Award), Vietnam Service
Medal with 1 silver service star and 2 bronze service stars, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Marksman Marksmanship Qualification Badge with Rifle Bar, and 3 Overseas Service Bars.




_ _James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20070001235
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/12
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19740920
DISCHARGE AUTHORITY
AR 635-200, Chapter 10 
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.