RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 February 2008
	DOCKET NUMBER:  AR20070014025 


	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. Rial D. Coleman

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. Jose A. Martinez

Member

Ms. Susan A. Powers

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, to have the Valor Device added to his previously awarded Bronze Star Medal, and to have the Valor Device added to his previously awarded Army Commendation Medal.

2.  The applicant states, in effect, that he is deserving of this recognition based upon the fact that he was wounded during combat on 10 February 1971 while serving in the Republic of Vietnam.  The applicant continues that poor communications and administrative error resulted in him not receiving the awards and decorations he deserved.

3.  The applicant provides a contemporaneous three-page extract of DA Form 1594 (Daily Staff Journal of Duty Officer's Log) and ten-page Operational Report from his former unit of assignment as additional documentary evidence in support of this 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's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 October 1971 shows that he was inducted into the Army of the United States on 26 March 1970.  He completed basic and advanced individual training and was awarded the military occupational specialty of 13A (Cannoneer).  The applicant also served in the military occupational specialty of 13B (Gunner).  The highest rank he achieved while serving on active duty was specialist/pay grade E-4.


3.  Block 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) for his period of service ending on 30 October 1971 shows he served in the Republic of Vietnam during the period 18 August 1970 through 27 October 1971.

4.  Block 38 of the applicant's DA Form 20 shows that while serving in the Republic of Vietnam, he was assigned to 1st Battalion, 82nd Artillery Regiment.  He was assigned to Battery B, for the period of 10 September 1970 through 
25 August 1971 and Battery A for the period of 26 August 1971 through 
24 October 1971.

5.  The applicant provides copies of three DA Forms 1594 extracted from the Daily Staff Journal of 1st Battalion, 82nd Field Artillery Regiment's operational activities in the Republic of Vietnam during his period of assignment to B Battery of the Battalion.  The original text of these documents is typewritten and there are handwritten comments in the margins of two pages.  The pertinent information shown on these documents is, in effect, as follows:

	a.  Item number 9, of DA Form 1594, dated 10 February 1971, shows 
"B Battery also needed dust-off [aerial medical evacuation] (non-hostile) wound:  [applicant's name and social security number]; trick knee gave way and individual is in great pain."  Item number 10, shows "The Battalion Headquarters and A Battery area received 27 rockets resulting in 1 WIA [wounded in action] and 
1 non hostile WIA.  Dust offs were effected for both.  B Battery required 1 dust off for one individual with a trick knee."  The handwritten text states that this entry is the record of when the applicant was first injured and the fact that his 
non-hostile injury occurred during action was omitted.

	b.  Item number 7, of DA Form 1594, dated 29 March 1971, shows, in pertinent part, B(-) Battery was ambushed resulting in 7 WIA and 1 MIA [missing in action].

	c.  Item number 11, of DA Form 1594, dated 29 March 1971, shows, in pertinent part, "Summary:  B Battery rejoined the Battalion today at Forward Support Base Vandergrift.  Battery B was ambushed during return trip causing extensive damage to one howitzer and 1 MIA and 7 WIA."  The handwritten text states that this entry is the record of when the applicant re-injured his knee when jumping off a 5-ton vehicle to take cover during the ambush.


6.  The applicant provides a copy of a ten-page Operational Report of 1st Battalion, 82nd Field Artillery Regiment's operational activities in the Republic of Vietnam during his period of assignment to B Battery of the Battalion.  The original text of these documents is typewritten and there are handwritten entries on five pages.  The pertinent information shown on these documents is, in effect, as follows:

	a.  Page 2, Item B1, shows "Poor communications and distance involved between the battalion's field position and rear area caused excessive delay in morning report entries, submission of recommendations for awards and decorations, and created problems in the area of processing personnel actions."  The handwritten text states "Evidence that daily reports were incomplete."

	b.  Page 3, Item B3, shows a list of personnel who were recommended for awards during the reporting period.  The applicant's name has been handwritten at the end of the lists for the Bronze Star Medal with Valor Device, the Army Commendation Medal with Valor Device, and the Purple Heart.

	c.  Page 6, Item D11, shows "D+11 (10 February 1971):  Vandergrift received 27 rockets at 1745 hours resulting in negative personnel and equipment losses.  Two dust-offs were required in A Battery for minor wounds; 1 hostile, 
1 non-hostile but during action."  This entry is highlighted, but there is no mention of B Battery, the applicant's unit of assignment at the time.

	d.  Page 8, Item D42, shows "D+52 (23 March 1971):  The battalion was alerted of plans to consolidate Battery B in position vicinity Khe Sanh.  Air movement (Shepard Platoon) to new position and remaining element and equipment via convoy 24 March 1971.  Vandergrift took 9 rockets at 1740 hours. 
Negative personnel and equipment loss."  The handwritten text states "B Battery received rockets as well" and lists the names of three people who were WIA and one person that was KIA [killed in action].

	e.  Page 9, Item D48, shows "D+58 (29 March 1971):  Battery B rejoined the battalion at Vandergrift moving from vicinity Khe Sanh by road.  The unit was ambushed enroute and suffered 1 MIA and 7 WIA with extensive equipment damage in one howitzer section."  The entry is highlighted.


7.  Section I (To be Completed by Attending Physician of Hospital Registrar), of DA Form 2173 (Statement of Medical Examination and Duty Status), posted in the applicant's available medical records shows that he was admitted to the 67th Evacuation Hospital on 11 February 1971.  The form further shows the applicant was admitted for a torn medial meniscus in his knee with effusion [swelling].  Block 30 (Details of the accident - Remarks), of Section II (To be Completed by Unit Commander or Unit Adviser), of the form shows "Individual had bad knees.  Knee was twisted while working on howitzer resulting in blood under kneecap."

8.  Standard Form 502 (Narrative Summary) posted in the applicant's available medical records shows, in effect, that he:

	a.  hit his knee against a gun on 10 February 1971;

	b.  was admitted to the 67th Evacuation Hospital on 11 February 1971;

	c.  had approximately 85 cubic centimeters of fluid drained from his knee;

	d.  received traction, bed rest and a cylindrical cast; and

	e.  was discharged and returned to duty on 13 February 1971 with a temporary physical profile, an appointment to remove his cast on 26 February 1971, and guidance to continue physical therapy for one more week.

9.  There is no documentary evidence posted in the applicant's available medical records that shows his knee was re-injured or that he received medical treatment for such at a later date.

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

11.  There are no orders in the available records which show the applicant was awarded the Purple Heart, the Bronze Star Medal with Valor Device, or the Army Commendation Medal with Valor Device.

12.  Block 40 (Wounds) of the applicant's DA Form 20 for his period of service ending on 30 October 1971 is blank.  Block 41 (Awards and Decorations) does not show award of the Purple Heart, the Bronze Star Medal with Valor Device, or the Army Commendation Medal with Valor Device.


13.  Block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 30 October 1971 does not show award of the Purple Heart, the Bronze Star Medal with Valor Device, or the Army Commendation Medal with Valor Device.

14.  Army Regulation 600-8-22 (Military Awards) 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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

15.  Army Regulation 600-8-22 provides, in pertinent part, that when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.
The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite.  This regulation also provides that accidental and/or self-inflicted injuries or wounds, except when in the heat of battle, and not involving gross negligence, clearly do not qualify for award of the Purple Heart.

16.  Army Regulation 600-8-22 provides, in pertinent part, that the bronze “V” device indicates acts of heroism involving conflict with an armed enemy and authorizes the bronze “V” device in conjunction with awards of the Army Commendation Medal, the Air Medal and the Bronze Star Medal.  
Although more than one award of the Army Commendation Medal or the Air Medal or the Bronze Star Medal may be made for heroism to the same person, the regulation provides that only one “V” device may be worn on awards of the Army Commendation Medal, or the Air Medal or the Bronze Star Medal for heroism.

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

18.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows the unit, to which the applicant was assigned, was awarded of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 42, dated 1972.

19.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

20.  The applicant's records show he participated in two campaigns during his service in the Republic of Vietnam:  Vietnam Counteroffensive Phase VII and Consolidation I.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded during combat in the Republic of Vietnam and should be awarded the Purple Heart, the Bronze Star Medal with Valor Device, and the Army Commendation Medal with Valor Device was carefully considered.

2.  Although the applicant injured his knee while serving in the Republic of Vietnam, there is no corroborating evidence present in the available records which shows that the applicant was wounded as the result of a hostile action.  In fact, the record shows that his knee was initially injured prior to the date of the incident and was aggravated when he accidentally hit it against a howitzer on which he was working.

3.  Army Regulation 600-8-22, in pertinent part, provides that accidental and/or self-inflicted injuries or wounds, except when in the heat of battle, and not involving gross negligence, clearly do not qualify for award of the Purple Heart.

4.  There are no orders that show the applicant was awarded the Purple Heart, the Bronze Star Medal with Valor Device, or the Army Commendation Medal with Valor Device.  There is also no indication in the applicant's record showing that he was recommended for any of the aforementioned awards.

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

6.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.


7.  Although the applicant's record shows that his service was both honorable and commendable, there is no indication that he performed any acts of heroism involving conflict with an armed enemy which would authorize award of the Valor device in conjunction with awards of the Bronze Star Medal and the Army Commendation Medal.

8.  In the absence of evidence that the applicant performed any acts of heroism involving conflict with an armed enemy, there is insufficient evidence upon which to base award of the Valor device in conjunction with awards of the Bronze Star Medal and the Army Commendation Medal in this case.

9.  General Orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, the applicant is entitled to have his records corrected to show this foreign unit award.

10.  Records show the applicant participated in two campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of two bronze service stars to be affixed to his Vietnam Service Medal.

11.  Evidence shows that the applicant’s records contain administrative error which does 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

__SAP __  _JAM___  _KAN____  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 error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.





__Kathleen A. Newman__
          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.