RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070013845 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carman Duncan

Member

Ms. Rea M. Nuppenau

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 Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show award of a second Purple Heart.

2.  The applicant states that he was wounded in action twice on 9 December 1965 and was awarded two Purple Hearts but his DD Form 214 only shows one award. 

3.  The applicant provides copies of his Purple Heart Award Certificates. 

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 7 July 1965, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

3.  On 4 December 1965, the applicant was assigned for duty as a machine gunner with the 1st Battalion, 29th Infantry Regiment, in the Republic of Vietnam.

4.  General Orders Number 97, 1st Infantry Division, dated 29 December 1965, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 9 December 1965.

5.  On 24 November 1966, the applicant was returned to the United States for duty at Fort Benning, Georgia.  

6.  On 6 July 1967, the applicant was released from active duty.  He had attained the rank of sergeant, pay grade E-5 and had completed 2 years of creditable active duty.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
[as corrected by DD Form 215], lists his awards as the National Defense Service Medal, Purple Heart, Army Commendation Medal, Vietnam Service Medal with three bronze service stars, Vietnam Campaign Medal with "1960-" Device, Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars.  It does not show award of a second Purple Heart. 

8.  Item 40 (Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) shows that on 9 December 1965, he received shrapnel wounds to his face, arms, chest, and back.  Item 41 (Awards and Decorations), of this same form shows that he was awarded the Purple Heart.  This form contains no evidence to suggest that the applicant was wounded in two separate instances.

9.  The two Purple Heart award certificates provided by the applicant show that he was wounded in action on 9 December 1965.  One of the certificates was published on 24 November 1966, and the other certificate was published on 
29 January 1966.

10.  The Vietnam Casualty Roster shows that the applicant was wounded in action on 9 December 1965. 

11.  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.  

12.  Army Regulation 600-8-22 further provides, in pertinent part, that the Purple Heart is authorized for the first wound suffered under conditions indicated above. For each subsequent award an Oak Leaf Cluster will be worn on the Purple Heart Ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent. 

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

14.  Item 38 (Record of Assignments) of the applicant's Enlisted Qualification Record (DA Form 20) shows that his conduct and efficiency were excellent.  The applicant’s records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal. 

15.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had 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 evidence clearly shows that the applicant was wounded in action on 
9 December 1965 and that he was awarded the Purple Heart.  However, the two Purple Heart certificates do not substantiate that he suffered wounds on two different instances on the same day.  There is no evidence of a second order awarding him a second Purple Heart.  Therefore, his request should be denied.

2.  The applicant’s records clearly show that he distinguished himself in the performance of his military service.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_JTM____  __CD___  __RMN__  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 him the Army Good Conduct Medal for the period from 7 July 1965 to 6 July 1967; and

b.  showing that, in addition to the awards shown on his DD Form 214, his authorized awards include the Army Good Conduct Medal.

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 Purple Heart.  




___     John T. Meixell_____
          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.