RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070005674 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones II

Member

Ms. Carmen Duncan

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 correction of his military records to show award of the Purple Heart and promotion to pay grade E5.  He also requests to personally appear before the Board.

2.  The applicant states that he has applied to the Board many times concerning his promotion but has been denied due to insufficient evidence.  He provides no statement regarding his request for the Purple Heart.

3.  The applicant provides copies of page one and two of Headquarters, United States Military Assistance Command, Vietnam Directive Number 624-1 (Promotions); four statements from witnesses; and extracts from his medical records.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant requests correction of his records to show that he was promoted to pay grade E5 in 1970.  The applicant first submitted this issue on 
19 November 1970.  It was considered and denied by the Board on ABCMR Docket Number 70-3868 on 26 July 1972.  It was again considered by the Board on 20 August 1975 on ABCMR Docket Number 75-4192.  It was also administratively closed on 9 February 1988; 18 February 1994; 11 October 1994; 18 May 2000; 29 May 2001; 3 September 2002; and 16 July 2003.  The applicant has been notified by separate correspondence that  Army Regulation 15-185 sets forth the procedures for processing requests to correct military records; and that it provides specific guidance to be applied in cases involving requests for reconsideration.  As a result, his request for promotion will not be discussed further in this Record of Proceedings. 
3.  On 7 January 1969, the applicant enlisted in the Regular Army of the United States for 2 years.  He completed his initial training to include the Pathfinder Course and the Ranger Course and was awarded military occupational specialty 11B4Y(Light Weapons Infantryman/Pathfinder).

4.  On 15 September 1969, the applicant was assigned for duty as a scout observer with C Company, 75th Infantry (Ranger).

5.  On 9 October 1969, the applicant was reassigned for duty as a pathfinder with the 11th Aviation Company.

6.  On 26 May 1970, the applicant sustained injuries as a result of a tree branch knocking him off of the armored personnel carrier on which he was riding while in a hostile fire zone.  He was subsequently medically evacuated to Brooks General Hospital, Fort Sam Houston, San Antonio, Texas, on 23 June 1970.

7.  The applicant's name is not listed on the Vietnam Casualty Roster.

8.  Item 40 (Wounds) of the applicant's Enlisted Personnel Qualification Record (DA Form 20) shows no record of wounds.

9.  On 22 October 1970, the applicant was retired due to a permanent physical disability.  He had attained the rank of specialist four, pay grade E4 and had completed 1 year, 9 months and 16 days of creditable active duty.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, lists his awards as the National Defense Service Medal, Air Medal, Vietnam Service Medal, Parachutist Badge, Pathfinder Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart

11. Army Regulation 600-8-22 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.  An oak leaf cluster is issued to denote award of second and succeeding awards of the Purple Heart.

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

13.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20), shows that his conduct and efficiency were excellent.  

14.  Army Regulation 672-5-1, in effect at the time, provides that the Army Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for 
portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.  

15.  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 following three campaigns: the Vietnam Summer-Fall 1969, the Vietnam Winter-Spring 1970, and the DA Sanctuary Counteroffensive.   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.  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 publication shows that the 11th Aviation Company, during the time of the applicant's assignment, was cited in Department of the Army General Orders (DAGO) Number 11, dated 1973, for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and in DAGO Number 
42, dated 1972, for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

17.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Campaign Medal with "1960-" Device.  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Vietnam Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster.  The evidence of record shows that the injuries he sustained were not as a direct result of enemy action.  Therefore, the applicant's request for award of the Purple Heart should not be granted.

2.  The applicant’s records clearly show that he distinguished himself in the performance of his military service.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, his records should be corrected to show award of this medal.

3.  Records show that the applicant served in the Republic of Vietnam during a qualifying period for award of the Republic of Vietnam Campaign Medal with "1960-" Device.  Therefore, his DD Form 214 should be corrected to show this foreign award.

4.  Records show that the applicant participated in three campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his Vietnam Service Medal.

5.  Records show that the applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 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.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_LDS ___  __FCJ __  _CD ____  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  awarding him the Army Good Conduct Medal for the period from 
7 January 1969 to 22 October 1970; and

b.  showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Army Good Conduct Medal, three bronze service stars to be affixed to his Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Republic of Vietnam Campaign Medal with '1960-" Device.

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.  





__  Linda  D . Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070005674
SUFFIX

RECON
 
DATE BOARDED
20070906 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
 GRANT 
REVIEW AUTHORITY

ISSUES         1.
131
2.
107
3.

4.

5.

6.