RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070012983 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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 correction of his records to show two awards of the Purple Heart for injuries sustained in the Republic of Vietnam, and award of the Bronze Star Medal, the Combat Infantryman Badge, and the Parachutist Badge.  

2.  The applicant states that his DA Form 201 [Military Personnel Records Jacket (MPRJ)] was lost in the Republic of Vietnam and that upon separation his DD Form 214 (Armed Forces of the United States Report of Transfer and Discharge) was prepared based on temporary and incomplete personnel service records.

3.  The applicant provided a self-authored letter, dated 19 July 2007, in support of his application.  

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 requests award of the Bronze Star Medal.  However, there are no orders or other evidence on file in his Official Military Personnel File (OMPF) that confirms he is entitled to this award.  In the absence of authority for this award, he may request award of the Bronze Star Medal under the provisions of Section 1130 of Title 10 of the United States Code (10 USC 1130).  The applicant has been notified by separate correspondence of the procedures for applying for this award under 10 USC 1130.  As a result, his request for award of the Bronze Star Medal will not be discussed further in this Record of Proceedings.

3.  The applicant's record shows that he enlisted in the Regular Army on 21 November 1966 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained during his military service was private first class/E-3.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 21 November 1969.

4.  The applicant’s record shows that he served in the Republic of Vietnam during the period 31 November 1967 through 29 May 1968.  He was presumably assigned to the 173rd Infantry Brigade (Airborne).  This presumption is based on the applicant's testimony. 

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal with one bronze service star, the Vietnam Service Medal with one bronze service star, and the Republic of Vietnam Campaign Medal with Device (1960).  Item 24 does not show award of the Parachutist Badge, the Combat Infantryman Badge, or two awards of the Purple Heart. 

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show any entries for wounds received. 

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows a handwritten entry for award of the Purple Heart and the Combat Infantryman Badge.  However, the authority for those awards is listed as “unknown.”

8.  The applicant's name does not appear on the Vietnam Casualty Roster.

9.  There are no general orders in the applicant's records to show he was awarded the Purple Heart, the Combat Infantryman Badge, or the Parachutist Badge.

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

11.  The applicant’s records contain a memorandum, dated 31 May 1968, and issued by the Commanding Officer, Naval Hospital, St. Albans, New York, which states that the applicant was awarded the Purple Heart for wounds received in action against armed force enemies of the United States on 15 February 1968.  



12.  Item 22c (Foreign and/or Sea Service) of the applicant’s DD Form 214 shows the entry “Vietnam 00 05 29” indicating he served 5 months and 29 days in the Republic of Vietnam; suggesting he may have departed earlier than the one year mark due to injury or illness.  

13.  Item 30 (Remarks) of the applicant’s DD Form 214 shows the entry “EM [enlisted member] separated on a temporary records.”

14.  In his self-authored statement, the applicant gives a personal testimony for his assignment to the 173rd Infantry Brigade (Airborne).  He states, in effect, the following:

	a.  In February 1968, during the Tet offensive, he served as an M-60 machine-gunner.  During a sudden attack by enemy forces on his unit, a grenade went off near him and shrapnel pierced his leg, jaw, and right wrist.  After a medic sewed his jaw with no anesthetic, he was subsequently medically evacuated to an Army hospital where he received his first award of the Purple Heart.

	b.  In May 1968 (erroneously listed as January 1968), he received his second award of the Purple Heart for injuries he sustained when his team received small arms fire from a nearby village.  While evacuating the village, he fell into a punji stick pit with stakes that injured his feet and legs.  He managed to exit the trap and proceeded to carry a wounded comrade to an extraction point.  He was medically evacuated to a local field hospital and was subsequently transferred to St. Albans Naval Hospital, New York, where he was treated and recovered.

15.  A telephonic call to the Student Accountability Office, U.S. Army Airborne School, Fort Benning, Georgia, on 16 January 2007, confirmed that the applicant completed airborne training, Class 39-67, during the period 22 May 1967 through 9 June 1967.  The Student Accountability Office further confirmed that the original certificate of training was presented to the Soldier and that there is no copy of permanent orders on file for the applicant.  The applicant was informed telephonically of this fact on 17 January 2007 and concurred with those dates.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.
17.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

18.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the U.S. Army Human Resources Command (formerly known as the Total Army Personnel Command) has advised, in similar cases that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

19.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of the basic Parachutist Badge.  Award of the basic Parachutist Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School, or have participated in at least one combat parachute jump.

20.  Review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.

21.  Headquarters, 5th Infantry Division (Mechanized) and Fort Carson, Fort Carson, Colorado, Special Orders Number 184, dated 3 July 1969, show that the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) on 28 April 1969.

22.  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.



23.  A review of the applicant's service record shows he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 19 October 1968.  However, this article 15 was not severe enough to disqualify him for the first award of the Good Conduct Medal.

24.  Army Regulation 672-5-1, in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to two awards of the Purple Heart and award of the Combat Infantryman Badge, and the Parachutist Badge.  

2.  Evidence of record shows that the applicant is only entitled to one award of the Purple Heart and to correction of his records to show this award, as follows:

	a.  There is no evidence in the applicant's records that he sustained an injury in January 1968.  Additionally, there are no medical records in the applicant's official military personnel file that show he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The applicant's personal testimony of events is remarkable and noted, but insufficient, by itself, to award the Purple Heart. 

	b.  Evidence of record shows that the applicant was awarded the Purple Heart directly by the hospital commander rendering treatment on 31 May 1968, for wounds received in action on 15 February 1968 against an enemy of the United States.  He was treated at St. Albans Naval Hospital, New York.

3.  Evidence of record shows that the applicant was an infantryman assigned in the Republic of Vietnam.  His personal testimony shows he was assigned to an infantry unit which engaged the enemy in ground combat.  He was awarded the Purple Heart for injuries received as a result of engaging the enemy and his DA Form 20 shows an entry for award of the Combat Infantryman Badge.  There is 
sufficient evidence to show that he was actively participating in such ground combat.  Therefore, he is entitled to award of the Combat Infantryman Badge and correction of his records to show this award.

4.  Evidence of record shows that the applicant satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School as confirmed by the U.S. Army Airborne School, Fort Benning, Georgia.  Therefore, he is entitled to award of the Parachutist Badge and correction of his records to show this award.

5.  Special Orders show that the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, he is entitled to correction of his records to show this award.

6.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

7.  Evidence of record confirms that the applicant served honorably during the period 21 November 1966 to 21 November 1969.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show award of the Good Conduct Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__ji____  __ena___  __dkh___  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:
	a.  awarding the applicant the Purple Heart for injuries sustained on 15 February 1968 in the Republic of Vietnam against a hostile enemy;

	b.  awarding the applicant the Combat Infantryman Badge for serving in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size, on 15 February 1968;

	c.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 21 November 1966 to 21 November 1969; and 

	d.  showing award of the Purple Heart, the Combat Infantryman Badge, the Parachutist Badge, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

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 a second award of the Purple Heart.



							John Infante
	______________________
          		CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.