RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070007837 


	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. G. E. Vanderberg

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 that his records be corrected to show he received combat wounds and by awarding him the Purple Heart.

2.  The applicant states his command failed to award him the Purple Heart for wounds received on 9 February 1971.

3.  The applicant provides copies of a letter from his former commanding officer, DD Form 214 (Report of Transfer or Discharge), a 19 February 1971 Standard Form 539 (Abbreviated Clinical Record), and a 25 February 1971 DA Form 3647-1 (Clinical Record Cover Sheet).

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 record shows the applicant entered active duty on 9 July 1969, completed training, and was awarded the military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist). 

3.  The applicant served in Vietnam from 26 July 1970 through 15 February 1971 with Company E, 1st Battalion, 7th Calvary Regiment.

4.  A 19 February 1971 Standard Form 539 states the applicant received fragment wounds to his right eye when a box of explosives dropped off a helicopter and exploded.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, at block 40 (Wounds), that on 9 February 1971 the applicant sustained fragment wounds to his right eye (with lose of vision), right eyebrow, left side of his chest and left arm.  He was medically evacuated from Vietnam on 28 February 1971.
6.  The applicant was released from active duty and transferred to the United States Army Reserve (USAR) Control Group (Annual Training) as a sergeant   (E-5) on 16 April 1971.

7.  The DA Form 20 reports his conduct and efficiency ratings as exclusively excellent and there is no indication of any disqualification for the Good Conduct Medal. 

8.  The applicant's 16 April 1971 DD Form 214 lists his awards as the Bronze Star Medal with "V" Device, the Air Medal, the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal with "1960" Device, the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle and Machine Gun Bars.

9.  The Vietnam Casualty Roster lists the applicant as having received non-hostile wounds on 9 February 1971.

10.  In a 19 April 2007 statement, the applicant's former commanding officer states he recalls that the applicant was seriously wounded 9 February 1971.  He states that during a lull in the action, while they were clearing a landing zone, a fire erupted and ignited a box of blasting caps.  The resulting explosion was the cause of the injuries to the applicant. 

11.  Army Regulation 600-8-22 (Military Awards), paragraph 2-8 provides that the Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force.  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.  Army Regulation 600-8-22, chapter 4, states that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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 active Federal military service.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than excellent was disqualifying.  Although there is no automatic 
entitlement to the Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond.  At that time, a disqualification was normally noted on the DA Form 20.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in 1st 5th Battalion, 7th Calvary Regiment, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The wounds the applicant received while serving in Vietnam are shown to have been the result of an accident not as a result of hostile action and as such, does not entitle him to the Purple Heart.

2.  The applicant distinguished himself by his conduct, efficiency and fidelity as evidenced by his combat service, his conduct and efficiency ratings, his personal decorations, and his promotion to E-5.  The record contains no indication of any disqualifying incidents or recommendations.  It is appropriate to award the applicant the Good Conduct Medal for his period of service from 9 July 1969 through 16 April 1971.

3.  Additionally the applicant is authorized award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_ LDS___   ___RSV _  _SWF__  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
	a. granting the applicant the Good Conduct Medal for his period of service from 9 July 1969 through 16 April 1971; and 

	b.  showing that, in addition to the awards listed on the DD Form 214, the applicant is also authorized award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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
AR20070007837
SUFFIX

RECON
 
DATE BOARDED
20071025 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.