RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070016788 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 on 5 July 1969 he was struck by shrapnel on the bottom of his right foot after an actual alert.  He went to the battalion aid station where a piece of shrapnel was removed and his wound was treated.  The medics put him in for a Purple Heart.  Several days later, the sergeant major called him to the orderly room, where he denied the applicant the Purple Heart.  The applicant states that the sergeant major was already mad at him for submitting a congressional because people with less time in country were being promoted.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a record of medical treatment.

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 enlisted in the Regular Army on 1 March 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 71H (Personnel Specialist).

3.  The applicant arrived in Vietnam and was assigned to the 2d Battalion, 320th Artillery on 26 September 1968.  He was reassigned to the 1st Battalion, 321st Artillery on 12 March 1969.

4.  The applicant provided a copy of a record of medical treatment.  The entry for 5 July 1969 indicates that he was treated for a “puncture wound on bottem (sic) of R-foot, sand debris in wound.  Wound cleaned & dressed…Occurred during alert for incoming mortar or Rockets (actual).”

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.
6.  The applicant departed Vietnam on 29 August 1969 after being credited with participation in four campaigns.

7.  Headquarters, U. S. Army Infantry Center, General Order Number 21, dated   2 February 1971, awarded the applicant the Army Good Conduct Medal.

8.  The applicant was honorably released from active duty on 26 February 1971.  His DD Form 214 shows he was awarded the National Defense Service Medal, two overseas service bars, the Army Commendation Medal, the Marksman Marksmanship Qualification Badge (Rifle M-14), the Expert Marksmanship Qualification Badge (Rifle M-16), the Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Campaign Medal with Device (1960).

9.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart 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 medical personnel, and the medical treatment must have been made a matter of official record.  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  

10.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.  

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that, at the time of the applicant's assignment to the 2d Battalion, 320th Artillery, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 19 July 1968 through       14 May 1969 by Department of the Army General Order (DAGO) Number 51, dated 1971.

12.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 2d Battalion, 320th Artillery, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 through 2 May 1970 by DAGO Number 48, dated 1971.

13.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant's assignment to the 1st Battalion, 321st Artillery, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 15 August 1968 through 14 May 1969 by DAGO Number 43, dated 1970.

14.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to the 1st Battalion, 321st Artillery, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 18 March 1968 through 2 May 1970 by DAGO Number 48, dated 1971.

15.  Department of the Army Pamphlet 672-3 states not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual.  Although multiple awards of this unit citation badge may not be worn, official military personnel and historical records will indicate all awards received.

DISCUSSION AND CONCLUSIONS:

1.  The record of medical treatment submitted by the applicant has been carefully considered.  However, that document does not indicate that a piece of shrapnel was removed from his foot and does not indicate that his injury was the result of hostile action.  Even though his injury occurred during an alert when mortar or rockets were actually incoming, the record of medical treatment does not indicate the degree to which the enemy caused the injury.

2.  Even though the applicant’s unit decided not to award him the Purple Heart, such a decision would not necessarily have prevented the battalion aid station medics from reporting the applicant as being wounded in action.  However, his name is not listed on the Vietnam Casualty Roster.

3.  Regrettably, there is insufficient evidence that would warrant awarding the applicant the Purple Heart.

4.  The evidence of record shows the applicant was awarded the Army Good Conduct Medal, and this award should be added to his DD Form 214.

5.  The applicant was credited with participation in four campaigns.  His DD Form 214 should be amended to show he is authorized to wear the Vietnam Service Medal with four bronze service stars instead of the three bronze service stars now reflected.

6.  The applicant was assigned to the 2d Battalion, 320th Artillery, during a period of time it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  He was assigned to the 1st Battalion, 321st Artillery, during a period of time it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Although he may wear only one award of the Republic of Vietnam Gallantry Cross with Palm Unit Award, all four of these awards should be added to his DD Form 214.

7.  Evidence shows that the applicant’s records contain administrative errors which do 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

__cd____  __lmd___  __jcr___  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 errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by amending his DD Form 214 to add the already-awarded Army Good Conduct Medal, two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two awards of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and to show he is authorized to wear four bronze service stars on his already-awarded Vietnam Service Medal instead of the three bronze service stars now reflected.



___Carmen Duncan______
          CHAIRPERSON