RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 February 2008
	DOCKET NUMBER:  AR20070015665 


	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. Richard T. Dunbar

Chairperson

Ms. Marla J. N. Troup

Member

Mr. David R. Gallagher

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.

2.  The applicant states that he was wounded in combat on 29 March 1970 while serving in the Republic of Vietnam, but was not awarded the Purple Heart due to an administrative oversight. 

3.  The applicant provides the following additional evidence in support of his application:

	a.  Self-authored statement, dated 23 October 2007.

	b.  Team member statement, dated 12 July 2006.

	c.  Headquarters, 71st Evacuation Hospital, General Orders Number 36, dated 31 March 1970, and Certificate, showing award of the Purple Heart to the team member.

	d.  Combat Medic statement, dated 11 August 2006.

	e.  Comrade-in-arms statement, dated 20 July 2006.

	f.  Doctor's statements, dated 6 October 1998 and 22 September 2006.

	g.  Standard Form (SF) 600 (Chronological Record of Medical care), from 30 October 1970 to 1 November 1971. 

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 record shows that he enlisted in the Regular Army on 27 July 1967 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 enlisted service was staff sergeant (SSG)/E-6.  He was honorably discharged and transferred to the U.S. Army Reserve (USAR) Control Group (Stand-By) on 8 December 1971.  He was subsequently appointed as a commissioned officer in the USAR on 7 December 1974 and was honorably discharged in the grade of major (MAJ)/O-4 on 17 August 1993.

3.  The applicant's record further shows that he served in the Republic of Vietnam during the period 12 December 1968 to 6 December 1971 as follows:

	a.  from 12 December 1968 to 23 February 1971, he was assigned to the 5th Special Forces Group (Airborne), 1st Special Forces, as a radio telephone operator and light weapons leader; and

	b.  from 24 February 1971 to 6 December 1971, he was assigned to the U.S. Army, Republic of Vietnam Training Advisory Group, as a communications sergeant.

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was awarded the National Defense Service Medal, the Parachutist Badge, the Vietnam Service Medal, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Bronze Star Medal, the Air Medal, the Army Commendation Medal, the Good Conduct Medal, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and 6 Overseas Service Bars.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

6.  The applicant’s record does not contain general orders awarding him the Purple Heart.

7.  The applicant's name is not shown on the Vietnam Casualty Roster.

8.  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.

9.  In his self-authored statement, dated 23 October 2007, the applicant describes the events that took place on 29 March 1970.  He states that he was a team leader of a reconnaissance team conducting an ambush along an enemy supply route in Southern Laos when an enemy truck convoy rolled into his ambush zone.  Although the team was able to halt the convoy with explosives, a team member was seriously wounded.  Realizing that the wounded comrade might delay the team's withdrawal, he (the applicant) ordered his team to depart while he stayed and exchanged small arms fire with the enemy.  During the exchange, an unknown explosive device detonated in front of him and injured his right knee. When the entire team was subsequently extracted, the team medic checked his knee and determined that his wound was not serious.  Upon arrival at the dispensary, he got his wound cleaned and dressed.  Confusion among the dispensary medics and the team medic regarding who was supposed to enter the injury in his medical records led to no entry.  However, when his knee later began to bother him, he had metal fragments removed from his knee by a military doctor. 

10.  In addition to his own self-authored statement, the applicant submitted the following supporting documents:

	a.  Headquarters, 71st Evacuation Hospital, General Orders Number 36, dated 31 March 1970, show that the wounded Soldier, described in the applicant's self-authored statement, was awarded the Purple Heart for wounds received in action on 30 March 1970.

	b.  A statement, dated 12 July 2006, from one of the applicant's team members.  He describes the events that took place on 29 March 1970 and states that he was part of the team that was on a reconnaissance mission to ambush an enemy truck convoy.  After ambushing the convoy and apprehending an enemy soldier, the team started receiving small arms fire.  The team member further adds that he was severely wounded and slept under a poncho liner for the night. When he woke up, he noticed the applicant was hit by shrapnel in his right knee and that there was blood that ran down his pant leg.  He (the applicant) had declined medical treatment since his (the team member) wounds were more serious than those of the applicant.  The team was subsequently extracted by air and the team member ended up in a hospital the next day where he was awarded the Purple Heart for wounds received during that combat mission.

	c.  A statement, dated 11 August 2006, from the team medic who restates the events that took place on 29 March 1970 and were previously described by the applicant and the team member.  The medic testifies that the applicant sustained fragmentation wounds to his leg and that he is deserving of award of the Purple Heart.  The medic adds that he attended to the severely wounded Soldier and asked if there were any other injuries, at which time the applicant responded that he had taken fragments from a grenade in his leg and that his wound was minor.  The medic also adds that while waiting for extraction, he examined the applicant's right knee and noticed that he sustained fragment wounds to his right knee, but the bleeding had stopped.  After extraction, the applicant sought medical help at the dispensary.  He concludes that he did not submit a recommendation for the applicant's award of the Purple Heart because he assumed other camp medics or administrative personnel had done so. 

	d.  A statement, dated 20 July 2006, from a comrade-in-arms of the same ambush team who witnessed the action.  He states that the team was inserted into enemy territory and set up an ambush site on 29 March 1970.  After detonating claymore mines and capturing an enemy insurgent, the team gathered at the rally point where the team member noticed that the applicant had been hit in his right leg, but his wound was not serious.  He concludes that the applicant sustained that wound during combat operations.

	e.  A statement, dated 22 September 2006, from a medical doctor, and former military medical officer, who testifies that he was the surgeon for Task Force 2 Advisory Element in the Republic of Vietnam in 1971 and that he personally removed metallic fragments from the applicant's right knee on 1 November 1971.  He further adds that he believes the fragment was attributed to combat injuries received from metallic fragmentation wound (MFW) and that in his medical opinion, the fragments and the wound were consistent with a wound from exploding ordnance eight months earlier during a mission in Southern Laos. 

	f.  An SF 600, dated 1 November 1971, which shows “Small fragment removed from the applicant's [right] perigenicular location under local anesthesia. Residual from old MFW.”

11.  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 and 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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

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

13.  Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 1960, dated 10 September 1970, show that the applicant was awarded the Bronze Star Medal with "V" Device, for heroism in connection with ground operations in the Republic of Vietnam on 29 March 1970. General Orders Number 1960 cited the following reason:

For heroism in connection with ground operations against a hostile force in the Republic of Vietnam, [Applicant] distinguished himself by heroism on 29 March 1970 while serving as a member of a long range reconnaissance team assigned the mission of capturing a prisoner.  The team positioned themselves on a road known to be used by enemy supply vehicles and set up an ambush.  At 2130 hours, an enemy two-and-one-half ton was halted by four command detonated mines.  Three enemy soldiers jumped from the vehicle, ran to a ditch, and began firing on the assault team, wounding one member in both arms.  [Applicant] placed himself in an exposed position and delivered suppressing fire on the enemy positions.  Although confronted by a superior enemy force and completely exposed to enemy fire, [Applicant] maintained his position until the vehicle driver and the wounded team member were removed from the ambush site.  After insuring that all the team members had withdrawn [Applicant] placed explosive charges on the enemy vehicle, successfully destroying it.  As the team moved through the rally point, [Applicant] remained behind to provide rear security and delay any pursuit, at the risk of being permanently separated from the team  [Applicant] effectively held the rear security position, blocking enemy pursuit until the team cleared the danger area.  After successfully delaying the pursuit, [Applicant] led the security element back to the team, where he spent the remainder of the night waiting and hiding from enemy patrols.  At dawn, helicopters began circling the area searching for the team, but could not find it because of heavy fog.  [Applicant] stood in the open firing pin flares until the team's location was ascertained. 

14.  Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 1934, dated 10 September 1970, show that the applicant was awarded the Army Commendation Medal with "V" Device, for heroism in connection with ground operations in the Republic of Vietnam on 3 May 1970.

15.  Headquarters, United States Army Vietnam, General Orders Number 2264-335, dated 29 June 1971, show that the applicant was awarded the Air Medal (second through fifth award) during the period 26 March 1970 through 20 April 1971.

16.  Army Regulation 600-8-22 (Military Awards) provides that Arabic numerals are now used instead of oak leaf clusters for the second and succeeding awards of the Air Medal.  The numeral 2 denotes the second award of the Air Medal.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was cited for his leadership and disregard for his personal safety by award of the Bronze Star Medal with a "V" Device.  Although the citation does not address any injuries or wounds sustained by the applicant on 29 March 1970, it is clear that he ignored his own welfare to protect his comrades.  Only after he ensured the safety of his team, he attended to his own needs. 

2.  The statements of the team medic and other team members, coupled with the testimony provided by the Task Force surgeon, clearly indicate that the applicant sustained an injury during the events of 29 March 1970.  The fact that the surgeon treated him for this injury by removing the metallic fragments months later does not negate the fact the he was injured in combat.  Therefore, there is sufficient evidence to grant the applicant the Purple Heart and correct his records to show this award. 

3.  General Orders show that the applicant was awarded the Bronze Star Medal with "V" Device for heroism in connection with ground operations in the Republic of Vietnam on 29 March 1970 which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this award.

4.  General Orders show that the applicant was awarded the Army Commendation Medal with "V" Device, for heroism in connection with ground operations in the Republic of Vietnam on 3 May 1970 which is not shown on his DD Form 214.  Therefore, he is entitled to have his records corrected to show this award.

5.  General Orders show that the applicant was awarded the Air Medal (second through fifth award) which is not shown on his DD Form 214.  Due to the conversion the oak leaf cluster to numerals to denote the second and succeeding awards of the Air Medal, he is authorized the Air Medal with Numeral “5.” Therefore, he is entitled to have his records corrected to show this award.

BOARD VOTE:

__rtd___  __mjnt__  __drg___  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 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.  awarding the applicant the Purple Heart for wounds received in action on 29 March 1970 in the Republic of Vietnam; and

	b.  showing award of the Purple Heart, the Bronze Star Medal with "V" Device, the Army Commendation Medal with "V" Device, and the Air Medal with Numeral “5.”




							Richard T. Dunbar
______________________
          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.