RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 January 2008
	DOCKET NUMBER:  AR20070009072 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 that he sustained fragment wounds to his kidney, liver, abdomen and both legs while he was in Vietnam.

3.  The applicant provides in support of his application, a copy of his Report of Transfer or Discharge (DD Form 214) and copies of his Army 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.  On 16 April 1970, the applicant was inducted into the Army in Cleveland, Ohio, and he successfully completed his training as an infantry indirect fire crewman.  He was transferred to Vietnam on 21 August 1970.

3.  On 11 December 1970, the applicant was wounded when an unknown person threw a fragmentation grenade in the enlisted members club.  He sustained fragment wounds to his back, abdomen and both lower extremities.  He also sustained a laceration to the liver.  He was hospitalized and treated for his injuries.

4.  The applicant was transferred to the Continental United States on 24 December 1970 and he was immediately hospitalized as a result of his injuries at Valley Forge General Hospital in Phoenixville, Pennsylvania.  He underwent exploratory surgery which included debridement of wounds and repair of his lacerated liver.  The applicant was placed on convalescent leave from 31 December 1970 through 1 February 1971.

5.  On 10 February 1971, the applicant was transferred to Fort Knox, Kentucky, where he remained until he was honorably released from active duty (REFRAD) on 17 December 1971 and transferred to the United States Army Reserve Control Group (Reinforcement).

6.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal and the Vietnam Service Medal.  His Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency ratings were excellent while he was in the Army.

7.  A review of the Vietnam Casualty Roster fails to show that the applicant was ever wounded in action by enemy forces while he was in Vietnam.

8.  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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

9.  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.

10.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Counteroffensive, Phase VII campaign 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.







11.  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 show the unit to which the applicant was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 March 1971 to 9 October 1971 by Department of the Army General Orders (DAGO) Number 6, dated 1974.

DISCUSSION AND CONCLUSIONS:

1.  A review of the Vietnam Casualty Roster fails to show that the applicant was ever wounded in action by enemy forces while he was in Vietnam.

2.  Although the available evidence of record shows that the applicant was wounded while he was in Vietnam, the records fail to show that his wounds were sustained as a result of enemy action.

3.  The evidence of record shows that when he was in Vietnam, an unknown person threw a hand grenade in the enlisted members club.  Although he was wounded, there is no evidence in the records that show that the grenade was thrown by enemy forces.  In the absence of evidence to the contrary, it must be presumed that the applicant is not entitled to award of the Purple Heart.

4.  However, the applicant is entitled to award of the Army Good Conduct Medal. The available records show that his conduct and efficiency ratings were excellent while he was in the Army and there is no derogatory information in his records that would result in his being denied the Army Good Conduct Medal.

5.  The applicant is also entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and one Bronze Service Star for wear on his Vietnam Service Medal.  The records show that the unit to which he was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 March 1971 to 9 October 1971 by DAGO Number 6, dated 1974.  He also participated in the Vietnam Counteroffensive, Phase VII campaign during his tour of duty in Vietnam and is entitled to one Bronze Service Star for wear on his Vietnam Service Medal. 

6.  Therefore, it would now be in the interest of justice to correct the applicant's records recommended below.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__AMC__  __DAC__  __REB   _  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 his period of service in the Army from 16 April 1970 through 17 December 1971, while he was serving in the rank of specialist (E-4) and amending his records accordingly; and

b.  amending his DD Form 214 to show that he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and one Bronze Service Star for wear on his 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 awarding him the Purple Heart.




___Ann M. Campbell          _
          CHAIRPERSON




INDEX

CASE ID
AR20070009072
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.  47
107.0000/AWARDS & DECORATIONS
2.  61
107.0015/PURPLE HEART
3.  140
107.0000/RVGC W/PALM UNIT CITATION
4.

5.

6.