RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 September 2007
	DOCKET NUMBER:  AR20070006233 


	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. Larry C. Bergquist

Chairperson

Ms. Marla J. N. Troup

Member

Ms. Ernestine I. Fields

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, in effect, that he sustained shrapnel wounds to his back in combat while serving in the Republic of Vietnam on 7 November 1967.  He further states that his unit had numerous seriously wounded comrades on that day and that the medics inadvertently did not record the treatment of his wounds in his medical records.

3.  The applicant provided a copy of orders awarding him the Bronze Star Medal with “V” Device and two letters from witnesses in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be awarded the Purple Heart. 

2.  Counsel states that she is the daughter of another Soldier who served with the applicant and witnessed him sustaining the wounds in combat on 7 November 1967. 

3.  Counsel provides a copy of the orders awarding the applicant the Bronze Star Medal with “V” Device, two witness statements including that of her father, and a notarized statement from the applicant authorizing her to obtain information and assistance.

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's records show that he was inducted into the Army of the United States on 6 December 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapon Infantryman).  He was honorably separated and transferred to the U.S. Army Reserve Control Group on 6 December 1968.

3.  The applicant’s records show that he served in the Republic of Vietnam during the period 30 June 1967 through 29 June 1968.  He was assigned to Company D, 1st Battalion, 26th Infantry, 1st Infantry Division.

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.  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.

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

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

9.  The applicant's records show that he was awarded the Combat Infantryman Badge (CIB), the Silver Star, and the Bronze Star Medal with “V” Device.  However, despite the applicant’s heroism and selfless service evidenced by those awards, the awards’ narratives do not show that he sustained any wounds while in action against an enemy or as a result of hostile action. 

10.  The witness statement submitted by the applicant’s platoon sergeant at the time states that the applicant was hit in the back on 7 November 1967 and that the platoon sergeant was standing at a distance of 20 feet from the applicant when he saw “the hole in his shirt” and “that he was bleeding.”

11.  The witness statement submitted by the applicant's squad leader describes the events on 7 November 1967 and how the applicant was wounded when his unit was ambushed by the enemy and that when the applicant rejoined his unit after his wounds were treated, the applicant showed him (the witness) his 3-inch long and 1.5-inch wide, red, swollen, and unhealed scar. 

12.  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 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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

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

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 21 dated 1969.

15.  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 53 dated 1970.

16.  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.

17.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive Phases III and IV as well as the TET Counteroffensive 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.

18.  A review of the applicant's service record shows no derogatory information that would disqualify him for the first award of the Good Conduct Medal.

19.  Army Regulation 672-5-1, in effect at the time, provides that the 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.

DISCUSSION AND CONCLUSIONS:

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

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms. 

3.  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, and the applicant's name is not listed on the Vietnam Casualty Roster.  Witness statements alone are not sufficient to award the Purple Heart.  In the absence of evidence that the he 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 records.  Therefore, he is entitled to correction of his records to show this award. 

5.  General Orders show the applicant was awarded the Republic of Vietnam Civil Actions Honor Medal, First Class which is not shown on his records.  Therefore, he is entitled to correction of his records to show this award.

6.  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 awards of three bronze service stars to be affixed to the Vietnam Service Medal.

7.  Evidence of record confirms that the applicant served honorably during the period 7 December 1966 through 6 December 1968.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show award of the Good Conduct Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__lcb___  __mjnt__  __eif___  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 showing award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal, First Class, the Good Conduct Medal, and three bronze service stars to be affixed to 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.  



							Larry C. Bergquist
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006233
SUFFIX

RECON

DATE BOARDED
20070911
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.