RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070012446 


	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. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. 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 award of the Purple Heart.

2.  The applicant states that he was wounded in a hostile environment on a combat operation, not while taking target practice.  In September 1970 (sic, actually 1969), as Company Commander of Company D, 1st Battalion, 35th Infantry, 4th Infantry Division, he was sent to an abandoned fire base northwest of Pleiku to act as bait to draw the North Vietnamese Army out of the nearby mountains.  As final preparation in securing the firebase, he ordered a live   fields-of-fire verification for 9:00 p.m.  A flare would be the signal to open fire.  The 3d Platoon began firing before the flare.  Radio communication from the 3d Platoon indicated movement outside the wire.  When the 3d Platoon opened fire, everyone else did.  More flares were popped and, after communicating with the other platoons, he stood up from behind the bunker he was near to see what was happening.  Within seconds he was on the ground, unconscious.  He remembers only the helicopter at some point coming in to pick him up.  He never knew what happened that night, whether there really was movement outside the wire.  

3.  The applicant provides patient movement orders; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter, dated       18 June 2007, from the National Personnel Records Center to his Representative in Congress; a letter, dated 10 August 2007, to him from his Representative in Congress; and an undated document from an unknown source (but possibly from an individual in the Department of Veterans Affairs (VA)).

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 was appointed a second lieutenant and entered active duty on 28 July 1967.  He was promoted to captain on 28 July 1969.

3.  The applicant arrived in Vietnam and was assigned to Company D, 1st Battalion, 35th Infantry on or about 3 August 1969.  

4.  Item 18 (Record of Assignments) of his DA Form 66 (Officer Qualification Record) shows he was assigned to the 106th General Hospital as a patient on    8 October 1969.

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.

6.  The applicant returned to the 1st Battalion, 35th Infantry on or about             14 November 1969.  He was reassigned to U. S. Army Military Assistance Command, Vietnam on 19 March 1970.  He departed Vietnam on 18 July 1970 after receiving credit for participation in four campaigns.

7.  The applicant was honorably discharged on 21 July 1970.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Air Medal, the Ranger Tab, the Bronze Star Medal, two Overseas Service Bars, the Army Commendation Medal, the Expert Infantryman Badge, and the Combat Infantryman Badge.

8.  The applicant provided an undated document from an unknown source (but which may have originated from someone within the VA) that indicated the applicant’s original VA rating decision in October 1975 stated he was firing an   M-16 (rifle) when a round exploded and he sustained a penetrating wound to his left check.  It also stated that, “his records of the incident indicate that they were just practicing when this occurred….”

9.  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.  Individuals wounded or killed in action by weapon fire as a result of “friendly fire” in the “heat of battle” while directly engaged in armed conflict will be awarded the Purple Heart as long as the “friendly” projectile or agent was released with the full intent of inflicting damage on or destroying enemy troops or equipment.

10.  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.

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 shows that, at the time of the applicant's assignment to the 1st Battalion, 35th Infantry, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 29 April 1969 through      10 April 1970 by Department of the Army General Orders (DAGO) Number 52, dated 1971.

12.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 1st Battalion, 35th Infantry, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 August 1969 through 31 October 1969 by DAGO Number 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s name is not listed on the Vietnam Casualty Roster.  As he acknowledged, he never knew what happened that night, whether there really was movement outside the wire.

2.  Although the source document referred to in the undated document provided by the applicant (i.e., “his records of the incident indicate that they were just practicing when this occurred….”) is not available, it appears that this “practice” may have been the “fields-of-fire verification” mentioned by the applicant.

3.  Nevertheless, there is no evidence of record and no evidence provided by the applicant to show that there was enemy movement outside the wire of the firebase.  Therefore, there is no evidence to show that the applicant and his unit were really directly engaged in armed conflict at the time of his injuries and thus, regrettably, there is insufficient evidence to show he met the eligibility criteria for award of the Purple Heart.

4.  The applicant was assigned to a unit during a period of time that unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  These unit awards should be added to his DD Form 214.

5.  The applicant was credited with participation in four campaigns and therefore is eligible to wear four bronze service stars on his Vietnam Service Medal.



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

__jev___  __tmr___  __jcr___  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 to amend his DD Form 214 to add the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and to show he is eligible to wear four bronze service stars on his already-awarded Vietnam Service Medal.




___James E. Vick______
          CHAIRPERSON




INDEX

CASE ID
AR20070012446
SUFFIX

RECON

DATE BOARDED
20080122
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.