RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011326 


	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. James Vick

Chairperson

Mr. Thomas Ray

Member

Mr. Jeffrey Redmann

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 was injured when his helicopter went down in Vietnam on 6 November 1967 and he was never awarded the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his PEB (physical evaluation Board) and MEB (Medical Evaluation Board) proceedings, with attachments, 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 enlisted in the Regular Army on 22 August 1966.  He successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Rucker, Alabama.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 67N, Helicopter Repairman.  

3.  The applicant was promoted to pay grade E-4 on 7 October 1967.  He served in Vietnam from 31 July 1967 to 2 January 1968.

4.  On 26 March 1968, the applicant was given a physical examination for the purpose of an MEB.  He was assigned a physical profile of 414111.  He was diagnosed as having gluteus maximus and medius paralysis, left, and "color blindness, does not recognize vivid red and green."


5.  On 15 May 1968, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having "contusion, gluteal nerves, left, with paralysis of the gluteus maximus and medius muscles, confirmed by EMG (Electromyogram) studies."  His ailments were ruled to have been incurred in the line of duty (LOD), while he was entitled to base pay, none existed prior to service (EPTS), and were not service aggravated.  He was found unfit for duty and he indicated that he did not desire to continue on active duty.  The findings and recommendations were approved on 17 May 1968.  The MEB recommended that the applicant be referred to a PEB.

6.  On 20 May 1968, the applicant appeared before an informal PEB.  He was found unfit for military service.  The PEB made a finding that his disability was incurred while he was entitled to base pay, was incurred in the LOD, was not due to own misconduct, was a direct result of armed conflict, and was caused by an instrument of war.  The PEB recommend a combined rating of 50 percent and placement on the TDRL (Temporary Disability Retired List) with reexamination during May 1969.  The applicant concurred with the results of the PEB and waived a formal hearing of his case on 22 May 1968.  

7.  The applicant was honorably separated from active duty on 10 July 1968, for disability, temporary, in the pay grade of E-4.  He was placed on the TDRL effective 11 July 1968, by reason of physical disability.  He had completed 1 year, 10 months, and 19 days of creditable service.  

8.  On 9 June 1969, the applicant was reexamined and appeared before an MEB.  He was diagnosed as having paralysis of the gluteus maximus and medius muscles, confirmed by EMG studies, February 1968, secondary to contusion of gluteal nerves, left, sustained in helicopter crash 6 November 1967, in the Republic of Vietnam.  His disability was considered in the LOD and he was found unfit.  The examination indicated that his condition could be permanent.  The MEB recommended that the applicant be removed from the TDRL and permanently retired from the service since it was not likely that he would gain further nerve function.  

9.  On 18 August 1969, an informal PEB convened at Walter Reed Army Medical Center, Washington, D.C.  The applicant was diagnosed as having paralysis of gluteus medius and maximus muscles secondary to contusion of inferior and superior gluteal nerves, left (Group XVII).  The PEB indicated that he remained unfit with a recommendation of 50 percent disability.   


10.  The applicant was removed from the TDRL and was permanently retired by reason of physical disability on 1 November 1969 with a 50 percent disability rating.

11.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Marksman Marksmanship Qualification Badge, with Rifle Bar, and the Air Medal.  His DD Form 214 does not show any additional awards.

12.  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). 

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

14.  There are no orders in the applicant's available personnel records which show that he was awarded the Purple Heart.  There is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action; however, medical treatment records show he received medical care and treatment for injuries he sustained in a helicopter crash.  The proximate cause of the helicopter crash was not included in these medical documents.

15.  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 Medal.

16.  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. 

17.  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.

18.  The applicant’s DD Form 214 shows entitlement to the Vietnam Service Medal; however, it does not show the one bronze service star 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. 

19.  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 60, dated 1969, while he was assigned to the unit.  This unit award is not shown on the applicant's DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed as having paralysis of the gluteus maximus and medius muscles, confirmed by EMG studies, February 1968, secondary to contusion of gluteus nerves, left, sustained in helicopter crash on 6 November 1967, in the Republic of Vietnam.  He appeared before a MEB and PEB and was found unfit for military duty in accordance with regulation with a combined rating of 50 percent.  He was placed on the TDRL and was later reexamined and placed on the Permanent Retired List.  There is evidence he received an injury as a result of a helicopter crash; however, there is no evidence to show he sustained a wound as a direct result of enemy action while serving in Vietnam.  Therefore, based on the available evidence he does not qualify for award of the Purple Heart.  

2.  There are no orders officially awarding the applicant the Purple Heart, he is not listed on the Vietnam Casualty List and there is no evidence to show the helicopter crash he was involved in on 6 November 1967 was the 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.  The applicant had "excellent" conduct and efficiency ratings throughout his time in the Army.  There is no evidence of indiscipline while he served on active duty.  The applicant was not awarded the Good Conduct Medal, it appears, more as a result of administrative oversight rather than something that the applicant did to disqualify himself from this award.  He is therefore eligible for award of the Good Conduct Medal for the period 22 August 1966 to 10 July 1968.



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

5.  The applicant's unit was cited for award of the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation, at the time he was a member of the unit.  He is therefore entitled to correction of his records to show this unit award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___JV___  ___TR___  __JR___  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 22 August 1966 to 10 July 1968; the Vietnam Service Medal, with one bronze service star; and the Republic of Vietnam Gallantry Cross, with Palm, 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.




___     _James Vick_________
          CHAIRPERSON




INDEX

CASE ID
AR20070011326
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080122
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19680710
DISCHARGE AUTHORITY
AR 635-40/TDRL TITLE 10 USC 1202 
DISCHARGE REASON

BOARD DECISION
DENY/GRANT
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.