RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070011178 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Richard Dunbar

Chairperson

Ms. Jeanette McCants

Member

Mr. Jerome Pionk

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, award of the Purple Heart. 

2.  The applicant states, in effect, that he sustained an injury to his left leg during combat action and never received the Purple Heart.  It is his belief that this injury fell under the guidelines for award of the Purple Heart that he never received.  He states that he was awarded a 10 percent service connected disability for his injury.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his rating decision by VA (Department of Veterans Affairs), dated 4 September 1968, and a copy of a newspaper article in support of his request.

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 record shows he was inducted into the Army of the United States on 15 December 1965.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Lewis, Washington.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.  

3.  The applicant was promoted to pay grade E-4 on 11 February 1967.  He served in Vietnam from 22 September 1966 to 23 September 1967.  He served until he was released from active duty on 23 September 1967.  He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged on 14 December 1971.

4.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign Medal; the Combat Infantryman Badge; the Expert Marksmanship Qualification Badge, with Rifle Bars (M-14), and the Expert Marksmanship Qualification Badge, with Rifle Bars (M-16/M-14).  His DD Form 214 does not show any additional awards.

5.  His DA Form 20 (Enlisted Qualification Record) does not show an entry in item 40 (Wounds) and the Purple Heart is also not shown as an authorized award in item 41 (Awards and Decorations). 

6.  The applicant's name does not appear on the Vietnam Casualty List for a wound received as a result of hostile action. 

7.  The applicant's medical records are unavailable for review.

8.  The applicant underwent a separation medical examination on 23 September 1967.  He was found to be in good health and was qualified for separation.  There is an absence of an entry to indicate he was wounded in action while in Vietnam.

9.  The VA decision documents states that on 1 April 1967, the applicant was seen at the dispensary with a history of a left ankle sprain two weeks previously.  He had complaints of pain and swelling and tenderness was noted on the examination.  He was treated symptomatically and was given light duty.  X-rays were negative.  He served thereafter without difficulty or treatment.  Separation examination was negative. The decision document states that he was granted a 10 percent disability rating for residual, left ankle sprain with torn ligaments
In addition, there is no indication that his left ankle sprain was received as a result of enemy or hostile action.

10.  The applicant provides a copy of a newspaper article, dated 24 March 1967, that states out-numbered infantrymen of the 4th Division's, 3rd Brigade, killed 596 members of an estimated 2,500 man enemy force in a fierce four hour battle Tuesday morning in Tay Ninh Province.  The clash in an egg-shaped dry rice paddy area, 300 by 400 meters, resulted in 31 American killed and 109 wounded.





11.  Item 38 (Record of Assignments), of his DA Form 20, shows the entry "EXC" (Excellent) for his conduct and efficiency.  There is no evidence of derogatory information contained in the available records.  There is no evidence the applicant was subjected to non-judicial punishment or courts-martial and that his commanders took action to deny him award of the Army Good Conduct.

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

13.  Army Regulation 600-8-22 provides 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 Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.

14.  The applicant’s DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show the three bronze service stars to which he is entitled for his campaign participation.  Army Regulation 600-8-22 provides that a
bronze service star is authorized for the Vietnam Service Medal for participation in each campaign. 

15.  Department of the Army Pamphlet 672-3 shows that the applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, by Department of the Army General Orders (DAGO) Number 48, dated 1971, the Presidential Unit Citation, by DAGO Number 59, 1968, and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, by DAGO Number 51, dated 1971, while he was assigned to the unit.  These unit awards are not shown on the applicant's DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he sustained an injury to his left leg during combat action and never received the Purple Heart and it is his belief that this injury fell within the guidelines of for award of the Purple Heat that he never received.  The evidence shows that he was seen at the dispensary with a history of left ankle sprain two weeks previously.  He was treated and given light duty and served thereafter without difficulty or treatment.  The VA decision document failed to show that he was injured or wounded as a result of enemy or hostile action.
2.  The evidence shows that he was granted a 10 percent disability rating for residual, left ankle sprain with torn ligament.  The VA decision is inconclusive for the purposes of supporting an award of the Purple Heart.  There is no evidence to show that his left ankle sprain was received as a result of enemy or hostile action.  Therefore, this evidence is insufficient to approve award of the Purple Heart and correct his records to show this award.  

3.  There are no orders awarding the applicant the Purple Heart, he is not listed on the Vietnam Casualty List, and there are no other medical records available to show that he was treated for a wound that he might have received as a result of hostile action during his service in Vietnam.  Therefore, he is not entitled to correction of his records to show the award of the Purple Heart.

4.  The applicant is entitled to the first award of the Good Conduct Medal, for the period 15 December 1965 to 23 September 1967, based on completion of a period of qualifying military service.  Therefore, he is entitled to correction of his records to show this award.

5.  The applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal.  While in Vietnam, he participated in three campaigns and he is therefore, entitled to be awarded three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

6.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Presidential Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, at the time he was a member of the unit.  He is, therefore entitled to correction of his records to show these unit awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___JP___  ___JM __  ___RD__  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 awarding the individual the Good Conduct Medal, for the period 5 October 1965 to 7 July 1967; the Vietnam Service Medal, with three bronze service stars; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Presidential Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation, and adding these awards to his DD Form 214.

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.




_____Richard T. Dunbar______
          CHAIRPERSON




INDEX

CASE ID
AR200700011178
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071220
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19670923
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY/GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.