RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070017049 


	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:




Chairperson



Member


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, in effect, that he sustained injuries during combat against the enemy while assigned to Headquarters and Headquarters Battery, 6th Battalion, 11th Artillery, in the Republic of Vietnam (RVN).  He also states that his injuries were overlooked and he should have received the Purple Heart because his injuries were sustained during combat.

3.  The applicant provides copies of a DA Form 8-275-3 (Clinical Record Cover Sheet), dated 26 June 1970; Standard Form (SF) 539 (Clinical Record -Abbreviated Clinical Record), dated 27 June 1970; Commander, U.S. Army Vietnam (RVN), message, dated 28 June 1970, subject:  Reassignment of Medical Evacuees; DD Form 173 (Joint Message Form), date-time group 021600Z July 1970, subject:  Reassignment of Medical Evacuees; DA Form
3349 (Medical Condition - Physical Profile Record), dated 7 August 1970;
SF 600 (Chronological Record of Medical Care), dated 18 September 1970;
SF 513 (Clinical Record - Consultation Sheet), dated 18 September 1970; Range of Motion document, undated; and extract of DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments).

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 military service records show that he enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 4 March 1963.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).

3.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 2 March 1966.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and Item 27 (Wounds Received As A Result Of Action With Enemy Forces) contains the entry “None.”  This document also shows that the applicant was honorably released from active duty on 2 March 1966, credited with completing 2 years,
2 months, and 3 days foreign service in U.S. Army Europe (USAREUR) and credited with completing 2 years, 11 months, and 29 days net service this period.

4.  The applicant’s military service records show that he enlisted and reentered active duty in the RA on 30 November 1968.

5.  The applicant's military service records contain a DD Form 214, with an effective date of 14 January 1971, along with a DD Form 215 (Correction to
DD Form 214, Certificate of Release or Discharge from Active Duty), dated
24 September 1971. This documentation shows the applicant was honorably discharged on 14 January 1971 for the purpose of his immediate reenlistment and credited with completing 2 years, 1 month, and 15 days net service this period.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

6.  The applicant's military service records contain a DD Form 214 (Report of Separation from Active Duty) that shows the applicant was honorably discharged on 14 January 1977 under the provisions of Army Regulation 635-200, Chapter 2.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows that he was awarded the Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal with 1 silver service star and 1 bronze service star, and Republic of Vietnam Campaign Medal.  At the time, the applicant was credited with completing
6 years net active service this period; 5 years, 1 month, and 14 days prior active service; and 11 years, 1 month, and 14 days total active service.

7.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 4 (Assignment Considerations) contains the entry “Mixed bilateral N/S type hearing loss.  No asg [assignment] involving habitual or frequent exposure to loud noise or firing of weapons (not to include firing for POR [processing for overseas replacement] qualification.  If firing, ear protection should be worn, no duty requiring normal hearing in both ears.”  Item 5 (Oversea Service) shows that he served 25 months in USAREUR (Germany) from
30 December 1963 through 14 February 1966; 12 months in the Far East Pacific Area (FEPA) (Vietnam) from 19 January 1969 through 18 January 1970; 1 month in FEPA (Vietnam) from 8 June 1970 through 27 June 1970; and 6 months in USAREUR (Germany) from 7 March 1974 through 5 September 1974.  Item
9 (Awards, Decorations, and Campaigns) of the DA Form 2-1 shows he was awarded the Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with “1960” Device, and Overseas Service Bar.  This item also shows that he served in the Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VI, Vietnam Counteroffensive Phase VII, TET 1969 Counteroffensive, Vietnam Summer-Fall 1969, and Vietnam Winter-Spring 1970 campaigns.

8.  The applicant's military service records contain an extract (page 3) of his
DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments) shows, in pertinent part, that the applicant was assigned to the 228th Supply and Services Company (Vietnam) as a heavy vehicle driver from 23 January 1969 through 17 January 1970.   This item also shows that the applicant was assigned to the 23rd Administration Company, Replacement Detachment (Vietnam) with duties unassigned from 4 June 1970 through 11 June 1970; assigned to Headquarters and Headquarters Battery, 6th Battalion, 11th Artillery (Vietnam) as a heavy vehicle driver from 12 June 1970 through 26 June 1970; and transferred as a patient to the Medical Hold Company, U.S. Army Hospital, Camp Zama (Vietnam) on 27 June 1970.

9.  There are no orders in the applicant’s military service records that show he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form
2-1 does not show an entry pertaining to a wound in Item 4 (Assignment Considerations) or list the Purple Heart in Item 9 (Awards, Decorations, and Campaigns).  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.

10.  In support of his application, the applicant provides the following documents:

     a.  DA Form 8-275-3 (Clinical Record Cover Sheet), dated 26 June 1970, and SF 539 (Clinical Record - Abbreviated Clinical Record), dated 27 June 1970, that show the applicant was hurt on 21 June 1970 when a 105mm Howitzer breach recoiled and struck him, resulting in a closed fracture of his left medial malleolus and bruised soft tissue around his left knee;

     b.  Commander, U.S. Army Vietnam (RVN), message, dated 28 June 1970, subject:  Reassignment of Medical Evacuees, that shows, in pertinent part, the applicant was reassigned to the Medical Hold Company, U.S. Army Hospital, Camp Zama, effective 27 June 1970;

     c.  DD Form 173 (Joint Message Form), date-time group 021600Z July 1970, subject:  Reassignment of Medical Evacuees, that shows, in pertinent part, the applicant was medically evacuated from Yakota Air Force Base (Japan) to the continental United States, effective 3 July 1970;

     d.  DA Form 3349 (Medical Condition - Physical Profile Record), dated
7 August 1970, that shows the applicant was issued a temporary physical profile due to a fractured medial malleolus (ankle), secondary to trauma; and

     e.  SF 600 (Chronological Record of Medical Care), dated 18 September 1970; SF 513 (Clinical Record - Consultation Sheet), dated 18 September 1970; and Range of Motion document that show the applicant was referred to physical therapy for treatment of the injury he sustained on 21 June 1970 when a
105mm Howitzer breach recoiled and struck him, resulting in a fracture of his left medial malleolus.

11.  A review of the applicant's records reveals that he may be entitled to additional awards that are not shown on his DD Form 214.

12.  The applicant's military service records contain a copy of Headquarters,
3rd Support Brigade (USAREUR), General Orders Number 12, dated 31 January 1966.  These orders show, in pertinent part, that the applicant was awarded the Good Conduct Medal for exemplary behavior, efficiency, and fidelity for the period 4 March 1963 to 3 March 1966.

13.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, Louisiana, General Orders Number 391, dated 6 October 1972.  These orders show, in pertinent part, that the applicant was awarded the Good Conduct Medal for exemplary behavior, efficiency, and fidelity for the period 30 November 1968 to
29 November 1971.

14.  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 228th Supply and Services Company (Vietnam), the unit was awarded the Meritorious Unit Commendation for the period 15 February 1969 to 15 August 1969 by Headquarters, Department of the Army, General Orders 39 (1970).

15.  Department of the Army Pamphlet 672-3 also shows that, at the time of the applicant's assignment to Headquarters and Headquarters Battery, 6th Battalion,
11th Artillery (Vietnam), the unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 42 (1972).

16.  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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

17.  Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying 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.  

18.  Army Regulation 600-8-22, in pertinent part, states that effective 1 March 1961, the Meritorious Unit Commendation was authorized for units and/or detachments of the Armed Forces of the United States for exceptionally meritorious conduct in the performance of outstanding services for at least
6 continuous months in support of military operations.  

19.  U.S. Army Vietnam Regulation Number 672-2 (Foreign Awards and Decorations) provided for the processing of foreign awards and decorations presented to individuals and units.  It states, in pertinent part, that the Republic of Vietnam Gallantry Cross Unit Citation was awarded in four degrees:  with Palm, with Gold Star, with Silver Star, and with Bronze Star.

20.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in pertinent part, states that unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached by competent orders to and present for duty with the unit during the entire period or at least 30 consecutive days of the period cited.

21.  Army Regulation 670-1 governs the requirements for the Overseas Service Bar.  In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1, or appropriate Department of the Army message. For Vietnam service, 1 Overseas Service Bar is authorized for each period of
6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the Overseas Service Bar.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the Purple Heart because he sustained an injury during combat while serving in the RVN. 

2.  The medical evidence of record shows the applicant was injured on 21 June 1970 when a 105mm Lightweight Towed Howitzer breach recoiled and struck him, resulting in a closed fracture of his left medial malleolus and bruised soft tissue around his left knee.  

3.  The Army regulation governing award of the Purple Heart provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidental wounds or injuries not related to or caused by enemy action (emphasis added).  There also is no evidence in the applicant’s records that he was wounded or treated for wounds as a result of hostile action (emphasis added).  There is no evidence that shows he was awarded the Purple Heart.  In addition, the applicant's name is not listed on the Headquarters, Department of the Army, The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.  In view of the foregoing, the applicant provides insufficient documentary evidence to support his claim for award of the Purple Heart.  Therefore, the applicant is not entitled to award of the Purple Heart in this case.

4.  The evidence of record shows that General Orders awarded the applicant the Good Conduct Medal for exemplary behavior, efficiency, and fidelity for the period 4 March 1963 to 3 March 1966.  The evidence of record also shows that General Orders awarded the applicant the Good Conduct Medal for exemplary behavior, efficiency, and fidelity for the period 30 November 1968 to
29 November 1971.  Therefore, he is entitled to correction of his records to show 2 awards of the Good Conduct Medal.

5.  General Orders awarded the applicant's unit the Meritorious Unit Commendation.  Therefore, it would be appropriate to correct his records to show this unit award.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

7.  The evidence of record shows that the applicant was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  Therefore, he is entitled to correction of his records to show this badge.

8.  The evidence of record shows that the applicant served 13 months in the Republic of Vietnam.  Therefore, he is entitled to correction of his records to show award of 2 Overseas Service Bars.

9.  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

__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 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 by:

     a.  deleting from Item 26 of his DD Form 214 the Good Conduct Medal; and

     b.  adding to Item 26 of this DD Form 214 the Good Conduct Medal (2nd Award), Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Marksman Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.




___Carmen Duncan  ___
      CHAIRPERSON