RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070006684 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Ann N. Campbell

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. 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, in effect, that his records be corrected to show his enlistment date as 11 February 1970 and the award of the Purple Heart.

2.  The applicant states, in effect, during a telephone conversation with the Board's staff, he was inducted into the Army on 11 February 1970 and was sent to Vietnam.  He states that while he was in Vietnam they were conducting training outside of their camp the enemy placed a “booby trap” in the field where they were training and he got wounded in the leg by shrapnel.  He states he went to sick call and they bandaged his wound and sent him back to the field.  He was later given a medal for the Purple Heart but he never received any paperwork and it was never recorded in his military records.

3.  The applicant provides a copy of two DD Forms 214 (Report of Separation from Active Duty), issued on 28 June 1976 and 28 June 1979; and a Standard Form 88 (Report of Medical History) dated 25 June 1979. 

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 military records show that he enlisted in the Regular Army on 11 February 1970.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His DD Form 4 (Enlistment Contract Armed Forces of the United States) verified that he was enlisted on 11 February 1970 for 3 years.

3.  He served as an Assistant Gunner and Gunner with Headquarters and Headquarters Company (HHC), 1st Infantry Brigade, 5th Infantry Division (Mechanized) in the Republic of Vietnam during the period 27 July 1970 to  
17 July 1971.

4.  Item 18b (Prior Active Service) of his DD Form 214 for the period ending  
28 June 1976 contains the entry 2 years, 7 months, and 18 days.  A DD Form 214 for the applicant’s initial period of service from 11 February through
28 September 1972 is not in the available records.

5.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 28 June 1976 shows award of the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Vietnam Gallantry Cross with Palm Unit Citation, and the Good Conduct Medal.  However, it does not show award of the Purple Heart.

6.  According to item 27 (Remarks) of his DD Form 214 for the period ending  
28 June 1979, the applicant served in the Republic of Korea during the period
29 June 1974 to 12 July 1975.  The applicant was honorably discharged from active duty on 28 June 1979 after serving a total of 9 years, 4 months, and
18 days of active service.

7.  The Standard Form 88 that the applicant submitted contains the entries "wound leg in Vietnam" and "Fragment wound (R) knee 1970."

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

9.  There are no general orders in the available records which show that the applicant was awarded the Purple Heart.

10.  A review of the Republic of Vietnam Casualty Roster does not show the applicant's name listed among those wounded.

11.  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 by military medical personnel, and the medical treatment must have been made a matter of official record.

12.  A review of the applicant's records indicates entitlement to additional awards that are not shown in item 26 of his DD Form 214 issued on 28 June 1979.

13.  Headquarters, 4th Infantry Division (Mechanized) Permanent Order  
54-2 dated 10 April 1979 awarded the applicant the Good Conduct Medal (Third Award) (now known as the Army Good Conduct Medal) for the period  
11 February 1976 to 10 February 1979.

14.  Army Human Resources Command Message (Date Time Group 9 February 2004) published implementing instructions for award of the Korea Defense Service Medal (KDSM).  This message specified criteria for the award of the KDSM as follows:  a) service members of the armed forces must have served in support of the defense of the Republic of Korea from 28 July 1954 through a future date to be determined by the Secretary of Defense;  b) the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles, and all air spaces above the land and water areas;  c) service members must have been mobilized with units or assigned or attached to units operating in the area of eligibility and have been physically deployed in the area of eligibility for 30 consecutive or 60 non-consecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his enlistment date as 11 February 1970 and the award of the Purple Heart.

2.  The applicant's initial enlistment contract shows that he was enlisted in the Regular Army on 11 February 1970, with subsequently reenlistments on  
29 September 1972 and 29 June 1976.  Item 18b (Prior Active Service) of his  
DD Form 214 for the period ending 28 June 1976 contains the entry 2 years, 
7 months, and 18 days.  As such, it is reasonable to assume he was issued a  
DD Form 214 for that period, which is not in the available records.

3.  The records also show that the applicant has received credit for 9 years,  
4 months, and 18 days of active service.  Therefore, there is no basis to change his DD Form 214 for the period ending 28 June 1976. 

4.  In a telephone conversation between the Board's staff and the applicant, it was stated that while the applicant was training in outside their camp in Vietnam, he was wounded by a booby trap that was placed by the enemy.  He was given the Purple Heart without the paperwork and it was never recorded in his military records.  However, there are no general orders in his military records, there are no medical records documenting his treatment, and there are no official records showing he was wounded as a result of hostile action.  Additionally, his name does not appear on the Republic of Vietnam Casualty Roster.  

5.  The Standard Form 88 he submitted failed to identify that the applicant sustained the wound as a result of hostile action while engaging the enemy and that he received treatment by military medical personnel.  Therefore, he is not entitled to correction of his records to show the Purple Heart.

6.  Orders show that the applicant was awarded the Army Good Conduct Medal (Third Award) for the period 11 February 1976 to 10 February 1979.  Therefore, he is entitled to corrections of his records to show this award.

7.  Evidence shows that the applicant served in the Republic of Korea during an authorized period for award of the Korea Defense Service Medal.  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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___lmd__  ___jcr___  ___amc__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the Army Good Conduct Medal (Third Award) for the period 11 February 1976 to
10 February 1979 and the Korea Defense Service Medal.

3.  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.




________Ann M. Campbell_________
          CHAIRPERSON




INDEX

CASE ID
AR20070006684
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071002
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.