RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 November 2007
      DOCKET NUMBER:  AR20070013121


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      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, reconsideration of his earlier
petition to be awarded the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded during combat
operations in the Republic of Vietnam (RVN) on 25 August 1970.  He sates
that his original request was denied and the case summary indicated the
wounds he sustained were the result of negligence on his part, which is
untrue.  He states he has been able to locate two former members of his
unit who served with him in the RVN, who can attest to the facts of the
situation.

3.  The applicant provides the following documents in support of his
reconsideration request:  ABCMR Memorandum of Consideration, dated 10 July
2003; Self-Authored Letter; Two Third-Party Supporting Statements; Western
Union Telegram; Separation Document (DD Form 214); Department of Veterans
Affairs Letter, dated 22 December 1971; and Honorable Discharge
Certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, reconsideration of the applicant's earlier request
for award of the PH.

2.  Counsel states, in effect, that the applicant served his country
honorably during a time of war and returned and became a productive citizen
and a pillar of the local community and his reconsideration request should
be processed to a favorable conclusion expeditiously.

3.  Counsel provides a statement in support of the reconsideration request.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2002083124 on 10 July 2003.

2.  During its original review of the case, the Board found no evidence
that the applicant's wounds were the result of hostile action, and that the
evidence showed the applicant accidentally detonated a friendly mechanical
ambush device, which caused his injury.  Therefore, it concluded there was
insufficient evidence to support award of the PH in the applicant's case.
3.  The applicant provides a self-authored statement and two third-party
witness statements from former members of his unit in the RVN as new
evidence.  In his statement, the applicant claims, in effect, that on 24
August 1970, his unit moved between two major trails and their mission was
to monitor traffic on these trails.  He states they were instructed to put
out mechanical ambushes on both trials during the early evening.  He claims
they were reluctant to go out that early in the evening because their
activity could easily be monitored in the light of day.  He further
indicates that on the next day, they were ordered to disarm the claymore
mines mechanical ambush devices they had put out the evening before.  He
states that while searching for the first mine, the Soldier who had placed
the claymore mine yelled to stop because the claymore was not where he had
put it, and at that time, there was a loud explosion, which knocked them to
the ground.  He concludes by stating that the mechanical ambush device had
been moved sometime during the night and that he and two other Soldiers
were wounded as a result of the explosion.

4.  The first third-party account provided is from an individual who
indicates that he served in the RVN from 28 January 1970 through 3
September 1971, and that he served with the applicant in the 1st Battalion,
22nd Infantry Regiment.  He states that on the particular mission in
question, they were dropped in by helicopter on a search and destroy
mission and were required to set up a night ambush.  He states that they
were required to set up their booby traps, which consisted of claymore
mines, during the daylight and that any Viet Cong watching would have known
where the booby traps were set-up.  He states that the next morning, the
applicant and two other Soldiers were wounded when one of the booby trap
mines had exploded.  He confirms that members of the applicant's platoon
reported that the claymore mines had been moved during the night over the
radio.

5.  The second third-party statement provided is from an individual who
states that he was present on the morning the applicant and two other
Soldiers were wounded by a booby-trap claymore mine.  He states that the
claymore was set out the evening before as a mechanical ambush and had been
moved by the enemy in the night.  He claims that when the applicant and the
other two Soldiers went out to retrieve the mine in the morning, it
detonated and wounded them all.  He states that he helped move the three
men onto the medical evacuation helicopter.

6.  A representative of the American Legion, a retired infantry/airborne
sergeant major (SGM), who is acting as counsel on the applicant's behalf,
provides a statement in support of the applicant's request.  He claims that
infantry doctrine and standard operating procedures direct that mechanical
ambushes be placed under cover of darkness or limited visibility to avoid
enemy observation.  He further states that it appears from the statements
provided by the applicant and the two former members of unit who served
with him in the RVN, that they were directed to emplace the mechanical
ambush devices prior to dark.  He further indicates that it appears from
the statements that during the night the enemy located the mechanical
ambush device and moved it or the trip wire, which he claims was not
uncommon in the RVN.  He concludes by stating that he is confident that a
review of the new evidence will show that the detonation of the mechanical
ambush was due to enemy action and was not the result of anyone's
negligence.

7.  The applicant's record shows that he was inducted into the Army and
entered active duty on 28 January 1970.  He was trained in, awarded and
served in military occupational specialty (MOS) 11B (Infantryman), and
specialist four is the highest rank he attained while serving on active
duty.

8.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 24 June 1970 through 23 May 1971.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company A, 1st Battalion, 50th Infantry Regiment, from 16 July through 14
November 1970 and to Company C, 1st Battalion, 22nd Infantry Regiment, from
15 November 1970 through 23 May 1971, performing duties in MOS 11B as a
rifleman and automatic rifleman.  Item 38 also shows that he received no
less than "Excellent" conduct and efficiency ratings at all of his active
duty assignments.

9.  Item 40 (Wounds) of the applicant's DA Form 20 contains an entry that
shows the applicant was wounded in action in the RVN on 25 August 1970,
when he received multiple fragmentation wounds to his left arm and a
possible fracture.

10.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
Casualty Report Message from the commander of the United States Army
Vietnam (USARV), which indicates the applicant received fragmentation
wounds to his left arm when he went to pick up a friendly mechanical ambush
that had been moved and he accidentally detonated it.  It also contains a
Western Union Telegram that notified the applicant's parents that he was
slightly wounded in action in Vietnam on 25 August 1970.

11.  The applicant's MPRJ is also void of any derogatory information or a
unit commander disqualification that would have precluded the applicant
from receiving the Army Good Conduct Medal (AGCM).

12.  On 29 September 1971, the applicant was honorably separated after
completing 1 year, 8 months and 2 days of active military service.  The DD
Form 214, as amended in a correction (DD Form 215) issued on 30 January
2004, shows he earned the following awards during his active duty tenure:
National Defense Service Medal; RVN Campaign Medal with 60 Device; Vietnam
Service Medal (VSM) with 2 bronze service stars; Republic of Vietnam
Gallantry Cross with Palm Unit Citation; Combat Infantryman Badge (CIB);
Expert Marksmanship Qualification Badge with Rifle and Machinegun Bars;
Marksman Marksmanship Qualification Badge with Rifle Bar; and 1 Overseas
Service Bar.

13.  During the review of this case, a member of the Board staff reviewed
the Department of the Army Vietnam Casualty Roster.  This roster contained
an entry pertaining to the applicant that showed he was wounded on
25 August 1970.  This entry listed the applicant's Casualty Status code as
23 (Hostile Wounded In Action).

14.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's
awards policy.  Paragraph 2-8 provides guidance on award of the PH.  It
states, in pertinent part, that the Purple Heart is awarded for a wound
sustained as a direct result of, or that was caused by enemy 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.

15.  Chapter 4 of the awards regulation prescribes the policy for award of
the
AGCM.  It states, in pertinent part, that the AGCM 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, in
which case a period of more than 1 year is a qualifying period.  Although
there is no automatic entitlement to the AGCM, disqualification must be
justified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH was carefully considered
and found to have merit.  The evidence of record confirms the applicant was
wounded in action in the RVN on 25 August 1970, when a mechanical ambush
devise was accidentally detonated.

2.  The third-party statements provided by the applicant confirm the
claymore mines they set up as a mechanical ambush during daylight on the
evening of
24 August 1970, were moved by enemy forces during the night and that on
25 August 1970, the applicant and two other Soldiers were wounded when one
of the moved claymore mines was accidentally detonated.  There statements,
which confirm the mechanical ambush device was moved by enemy forces,
clearly supports the applicant's claim that his wounds were received as
direct result of, or were caused by enemy action.

3.  Although the Western Union Telegram indicates the applicant received
his wounds as a result of an accidental detonation of a mechanical ambush,
an entry in Item 40 of the applicant's DA Form 20 and one on the Vietnam
Casualty Roster, corroborate the statements provided by indicating the
applicant's wounds were received as a result of, or were caused by enemy
action.  Therefore, it would be appropriate and serve the interest of
equity and justice to award the applicant the PH for being wounded in
action in the RVN on 25 August 1970, and by adding this award to his record
and separation document at this time.

4.  The applicant's record also confirms that he received "Excellent"
conduct
and efficiency ratings at all of his active duty assignments.  Further, the
record is void of any derogatory information or a unit commander
disqualification that would have precluded him from receiving the AGCM.  As
a result, it would be appropriate to award the applicant the first award of
the AGCM, for his qualifying period of honorable active duty service from
28 January 1970 through
29 September 1971; and to add this award to his record and separation
document at this time.

BOARD VOTE:

__ENA __  __DLL __  __RMN     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
amendment of the ABCMR’s decision in Docket Number AR2002083124, dated 10
July 2003.  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 being wounded in action in the Republic of Vietnam on
25 August 1970; by awarding him the Army Good Conduct Medal, for his
qualifying period of honorable active duty service from 28 January 1970
through 29 September 1971; and by providing him a correction to his
separation document that includes these awards.




                                  _____Eric N. Andersen ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070013121                           |
|SUFFIX                  |                                        |
|RECON                   |AR2002083124-2003/07/10                 |
|DATE BOARDED            |2007/11/20                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/09/29                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Release                           |
|BOARD DECISION          |GRANT PLUS                              |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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