RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070009866 


	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:


Mr. William Powers

Chairperson

Mr. Michael Flynn

Member

Ms. Sherry Stone

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 he was awarded the Purple Heart.

2.  The applicant states, in effect, he was wounded on 21 February 1969 by enemy fire when a bullet came through the windshield of his vehicle and pieces of shrapnel entered his left arm.  The unit medic pulled the metal piece out of his arm and treated him.  His medical records were at the Battalion in the field.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a DA Form 215 (Correction to DD Form 214), a written statement, DA Form 20 (Enlisted Qualification Record), and a letter from his state representative.

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 service records show that he entered active duty on 27 November 1967.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 64B (Truck Driver).

3.  He served a tour with Company C, 36th Engineer Battalion in the Republic of Vietnam during the period 27 April 1968 to 17 April 1969; Company C,  
304th Signal Battalion in the Republic of Korea during the period 14 January 1970 to 22 May 1970; and he served once again with Company C, 36th Engineer Battalion in the Republic of Vietnam during the period 27 June 1970 to  
13 September 1970.

4.  The applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri on  
18 September 1970.  He had completed 2 years, 9 months, and 19 days of active service and accrued 3 days of lost time.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.  However, it does not show the Purple Heart.

6.  Item 40 (Wounds) of his DD Form 20 shows the entry "Shrapnel upper left arm 21 Feb 69."

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

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

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

10.  In the statement that applicant submitted, he states, in effect, that the medic that treated his left arm told him he would write up the request for the Purple Heart but his first sergeant told the medic don't bother, it is only a scratch.  He asked the first sergeant several times about his Purple Heart and each time he was chased away.  He states that the medic was unhappy but it appears that he made an entry in item 40 of his DA Form 20.  He states that he was wounded in action by enemy fire and he earned the Purple Heart.

11.  Army Regulation 672-5-1 (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 a medical officer, and the medical treatment must have been made a matter of official record.  This regulation also provides that there are no time limitations on requests for award of the Purple Heart.

12.  A review of the applicant's records indicates entitlement to additional awards that are not shown in item 24 of his DD Form 214.

13.  Army Regulation 600-8-22 (Military Awards) states that the Korea Defense Service Medal (KDSM) is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility and period of eligibility are as follows:  
a.  the area of eligibility encompasses all land area of the Republic of Korea, and the contiguous water out to 12 nautical miles; and
b.  all air spaces above the land and water area.
The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 
60 nonconsecutive days, or meet the following criteria: 

a.  be engaged in combat during an armed engagement, regardless of the time in the area of eligibility; 

b.  wounded or injured in the line of duty and required medical evacuation from the area of eligibility; or

c.  participating as a regularly assigned air crewmember flying sorties into, out of, or within the area of eligibility in direct support of military operations.  Each day that one or more sorties are flown in accordance with these criteria will count as one day toward the 30 or 60-day requirement, and personnel who serve in operations and exercises conducted in the area of eligibility are considered eligible for the award as long as the basic time criteria is met.  Due to the extensive time period for KDSM eligibility, the nonconsecutive service period for eligibility remains cumulative throughout the entire period.  Service members qualified for the Armed Forces Expeditionary Medal (AFEM) by reasons of service between 1 October 1966 and 30 June 1974, in an area for which the KDSM was subsequently authorized are eligible for both the AFEM and the KDSM.  Award of the KDSM for this time period is a one-time exception to policy to comply with section 543 of the National Defense Authorization Act of Fiscal Year 2003,Public Law 107-314.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows the unit, to which the applicant was assigned, Company C, 36th Engineer Battalion, was cited for an award of the Meritorious Unit Commendation (MUC) based on Department of the Army General Orders Number 51, dated 1971 and Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation based on Department of the Army General Orders Number 2, dated 1971.

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 Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

16.  The applicant's records show that he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.

17.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the Vietnam Counteroffensive, Phase IV (2 April to 30 June 1968); Vietnam Counteroffensive, Phase V (1 July to 1 November 1968); Vietnam Counteroffensive Phase VI (2 November 1968 to 22 February 1969); TET  
69 Counteroffensive (23 February 1969 to 8 June 1969); DA Sanctuary Counteroffensive (1 May to 30 June 1970); and Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign and that a silver service star is authorized in lieu of five bronze service stars.

DISCUSSION AND CONCLUSIONS:

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

2.  The entry in item 40 of the applicant’s DA Form 20 is sufficient evidence to grant the applicant’s request for award of the Purple Heart.  The applicant’s statement that he was treated by a medic who made the entry on his DA Form 20 appears plausible and is accepted.

3.  Evidence shows that the applicant is entitled to the KDSM and AFEM base on his service in the Republic of Korea between 1 October 1966 and 30 June 1974. Therefore, he is entitled to correction of his records to show these awards.

4.  Orders show that the applicant is entitled to the award of the MUC.  Therefore, he is entitled to correction of his records to show this award.

5.  Orders show that the applicant is entitled to the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation.  Therefore, he is entitled to correction of his records to show these foreign unit awards.

6.  Evidence shows that the applicant was assigned to a unit that participated in six campaigns.  Therefore, he is entitled to correction of his records to show one silver service star and one bronze service star to be affixed to his Vietnam Service Medal.

BOARD VOTE:

___WP__  __MF ___  __SS ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds incurred in Vietnam on 21 February 1969, and by adding to his separation document the KDSM, AFEM, MUC, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and one silver service star and one bronze service star to be affixed to his Vietnam Service Medal.




____  William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070009866
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071211
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
107.00
2.

3.

4.

5.

6.