RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070009743 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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, as the daughter of a deceased former service member (FSM), requests that the FSM be awarded the Purple Heart.

2.  The applicant states that the FSM was injured in the line of duty when he was thrown out of a vehicle that hit a mine.  She states she is the FSM’s next of kin as she holds power of attorney for her mother, who resides in a nursing home and is gravely ill.

3.  The applicant provides a separate letter, dated 28 June 2007; her birth certificate; extracts from the FSM’s medical records and Physical Evaluation Board (PEB) proceedings; a copy of the FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a Veterans Administration (VA) Rating Decision; the FSM’s death certificate; and a power of attorney.

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 FSM was inducted into the Army on 5 June 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11E (Armor Crewman).

3.  The FSM arrived in Vietnam and was assigned to Company D (Maintenance), 173d Support Battalion, 173d Airborne Brigade on 15 December 1967.

4.  On 20 May 1968, the FSM was involved in a vehicle accident.  At that time, he was credited with participation in three campaigns.


5.  A Standard Form 502 (Clinical Record Narrative Summary), date of admission 20 May 1968, indicates the FSM was “tossed out of a jeep by a mine….”

6.  A Clinical Record Cover Sheet, date of disposition 6 June 1968, indicates the FSM “was injured as a (illegible) of a truck he was riding in ran off the road….”

7.  An unidentified and undated medical document indicates the FSM “was injured…when riding as a passenger in a truck (illegible) went off the road during a rainstorm….”

8.  A Standard Form 502, date of admission 8 June 1968, indicates the FSM “was thrown from rear of 3/4-ton truck when it skidded from road….”

9.  On 12 July 1968, a PEB recommended the FSM be permanently retired due to the injuries he suffered in the vehicle accident.  The PEB proceedings indicated the FSM’s disability was a direct result of armed conflict.  The proceedings noted that there was no record of the cause of the disability but    the determination of “direct result of armed conflict” was made because of the admission clinical record, dated 20 May 1968, which stated “tossed out of a jeep by a mine.”

10.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 14 August 1968 and approved on 24 September 1968, indicated that the FSM’s injuries were incurred in the line of duty – not due to misconduct.  The document noted that the FSM had cleared the company for reassignment within the brigade, but had not signed out of the company yet, when he and three or four other members of the company decided to visit Lazy Acres Resort, a recreation facility on Camp Radcliffe.  Before they started back, it had begun to rain and the roads were very slippery.  Specialist T___ (not the FSM) was the driver when the vehicle careened out of control, slid across the road, and rolled over.  Three persons were in the front seat of the truck and two persons plus the FSM were in the cargo area.  All persons except the FSM suffered only minor injuries.  The two persons in the front of the vehicle with Specialist T___ claimed that he was not traveling over 15 miles per hour when the vehicle slid on the wet gravel road and overturned and had done all that was humanly possible to keep the vehicle on the road and under control.

11.  On 22 October 1968, the FSM was released from active duty due to physical disability and was placed on the retired list the following day.


12.  The FSM’s DD Form 214 shows he was awarded the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the National Defense Service Medal, and the Parachutist Badge.

13.  Army Regulation 600-8-22 (Military Awards) states 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.

14.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.  

15.  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 shows that, at the time of the applicant's assignment to the 173d Support Battalion, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 5 May 1965 through         26 September 1970 by Department of the Army General Orders Number 51, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that there are contradictory explanations of how the vehicle accident that injured the FSM occurred.  

2.  One Standard Form 502 indicated the FSM was “tossed out of a jeep by a mine….”  Another Standard Form 502 indicated he was “thrown from rear of   3/4-ton truck when it skidded from road….”  A Clinical Record Cover Sheet indicated he “was injured as a (illegible) of a truck he was riding in ran off the road….”  An unidentified and undated medical document indicated he “was injured…when riding as a passenger in a truck (illegible) went off the road during a rainstorm….”

3.  The PEB proceedings, dated 12 July 1968, indicated that the FSM’s disability was a direct result of armed conflict.  However, the proceedings also noted that there was no record of the cause of the disability but that the determination of “direct result of armed conflict” was made because of the admission clinical record, dated 20 May 1968, which stated “tossed out of a jeep by a mine.”  It appears the PEB was giving the FSM the benefit of any doubt given the facts known in July 1968.
4.  However, the DA Form 2173 was completed in August 1968, after the PEB proceedings were completed.  It appears a thorough investigation of the incident revealed that the accident was not the result of hostile action but rather was an accident caused by bad weather and road conditions.  It appears that first-hand knowledge of the cause of the accident was obtained from other Soldiers who were also involved in the accident that severely injured the FSM.  

5.  Despite any earlier conclusions concerning the cause of the accident that were made, the final conclusion after an investigation revealed that the FSM was not injured as a result of hostile action.  Therefore, regrettably, he did not meet the eligibility criteria for award of the Purple Heart.

6.  The evidence of record shows that the FSM was assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  He also met the eligibility criteria to wear three bronze service stars on his Vietnam Service Medal.  These awards should be reflected on his DD Form 214.

7.  Evidence shows that the FSM’s records contain administrative errors which do not require action by the Board.  Therefore, administrative correction of the FSM’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

__jtm___  __jrm___  __swf___  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 errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by amending his DD Form 214 to add the Republic of Vietnam Gallantry Cross with Palm Unit Citation and to show he was eligible to wear three bronze service stars on his already-awarded Vietnam Service Medal.




___John T. Meixell____
          CHAIRPERSON




INDEX

CASE ID
AR20070009743
SUFFIX

RECON

DATE BOARDED
20071129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0015
2.

3.

4.

5.

6.