RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070013616 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Purple Heart.

2.  The applicant states, in effect, that he was awarded the Purple Heart and it was not annotated on his DD Form 214. 

3.  The applicant provides a copy of his DD Form 214 and a copy of his DA Form 20 (Enlisted Qualification Record).

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.  On 5 August 1969, the applicant was inducted into the Army of the United States.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist four/E-4.  On 12 April 1971, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  On 1 August 1975, he was honorably discharged from the USAR upon completion of his statutory military obligation.

3.  The applicant served in the Republic of Vietnam (RVN) from 18 May 1970 through 17 May 1971.  He performed duties as a personnel carrier driver with Company A, 1st Battalion, 5th Infantry Regiment, 25th Infantry Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.  The applicant authenticated his DD Form 214 with his signature.
5.  A medical entry in the applicant's service medical records for 1 September 1970 shows that he received a deep shrapnel wound to the right elbow and right ear.  His left ear also presented with discharge.  On 4 September 1970, the applicant was seen at the medical aid station on follow-up.  His right ear was inflamed, but no infection was present.  His right elbow was sore and he was prescribed an antibiotic.  On 6 September 1970, the applicant's right elbow was x-rayed.  Swelling was noted and the area appeared to be infected.  The metallic fragment noted on the x-ray was removed.  

6.  Item 40 (Wounds) of his DA Form 20 does not record any wounds sustained as a result of hostile action.  However, Item 41 (Awards and Decorations) shows that he was awarded the Purple Heart by General Orders Number 57, Headquarters, 2nd Brigade, 25th Infantry Division.  This form also shows he was issued the medal.

7.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.

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

9.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

10.  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 medical personnel, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

11.  Review of the applicant's record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  The applicant's records show that he received ratings of excellent in conduct and efficiency.  There is no evidence the applicant was disqualified for award of the Army Good Conduct Medal (AGCM).

13.  Army Regulation 672-5-1, in effect at the time, provides that the AGCM 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.

14.  The applicant's records show he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.  His records indicate he participated in 2 campaigns, the DA Sanctuary Counteroffensive and the Vietnam Counteroffensive Phase VII campaigns.   

15.  Appendix B of Army Regulation 600-8-22 lists all approved Army campaigns, including campaigns of the Vietnam War.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was awarded the Purple Heart and that it was omitted from his DD Form 214.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is evidence in the applicant's service medical records that he received shrapnel wounds to his right elbow and right ear on 1 September 1970, but his medical records do not conclusively show his wounds were the result of hostile action.  His name is not on the Vietnam Casualty Roster.  

3.  The applicant's DA Form 20 shows that he was awarded the Purple Heart by General Orders Number 57, Headquarters, 2nd Brigade, 25th Infantry Division.  It also shows that he was issued the medal.  A search was made through ADCARS in an attempt to secure a copy of the applicant's Purple Heart order with negative results.




4.  Given the available medical evidence and the notation in his official record that he was awarded the Purple Heart by General Orders, it is equitable to resolve the benefit of the doubt in the applicant's favor.  Therefore, the evidence is sufficient to show that it is at least as likely as not that he was awarded the Purple Heart for injuries sustained in the RVN on 1 September 1970 and he is entitled to correction of his record to show this award. 

5.  The applicant completed a qualifying period of service for the first award of the AGCM.  There is no evidence in the available records which show the applicant was disqualified for this award.  Therefore, the applicant is entitled to award of the AGCM for the period 5 August 1969 through 12 April 1971 and to correction of his records to show the award of the AGCM (First Award).

6.  Evidence of record shows that the applicant participated in 2 campaigns during his service in the RVN.  Therefore, he is eligible for award of 2 bronze service stars to be affixed on his already-awarded Vietnam Service Medal. 

BOARD VOTE:

__tsk___  __jlp___  __dwt___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding the already-awarded Purple Heart for wounds sustained in the RVN on 1 September 1970 to his DD Form 214; 

	b.  awarding the applicant the AGCM (First Award) for the qualifying period of 5 August 1971 through 12 April 1971 and correcting the record to show this award; and



	c.  deleting the "Vietnam Service Medal" from his DD Form 214 and adding the "Vietnam Service Medal with 2 bronze service stars."



							TSK
      	______________________
                		CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070013616



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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