RECORD OF PROCEEDINGS


	IN THE CASE OF:  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070017527 


	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.









      The following members, a quorum, were present:


Mr. T. S. K.

Chairperson

Mr. J. L. P.

Member

Mr. D. T.

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 was wounded while in a bunker line that was being bombarded by North Vietnamese Army artillery shells.  The applicant also states that an artillery shell landed within a few feet of his location, he sustained hearing damage to both ears and tinnitus, and was transported to the 95th Evacuation Hospital.  The applicant further states that the Department of Veterans Affairs (VA) granted him a service-connected disability for this injury and he invites the Army Board for Correction of Military Records (ABCMR) to obtain copies of his VA medical records to confirm he was injured while in combat in the Republic of Vietnam.

3.  The applicant provides no additional documentary evidence.

4.  On 17 January 2008, the Chief, Case Management Division, ABCMR, advised the applicant that the ABCMR does not have access to his medical records.  The letter also shows that since the applicant’s Army medical records may support his request, he was urged to obtain a copy of those records that may offer evidence that he was wounded in combat.  He was also advised to provide the records to the ABCMR within 30 days.  To date, the applicant has failed to provide additional documentary evidence in support of his 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 military service records show that he enlisted in the U.S. Army Reserve on 10 July 1969 and entered active duty in the Regular Army for a period of 3 years on 4 August 1969.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 54A (Chemical Operations Apprentice).  He was subsequently awarded MOS 54B (Decontamination Specialist) as his primary MOS.

3.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) shows, in pertinent part, that he was assigned overseas to the Republic of Vietnam (RVN) on 5 May 1971.  Item 39 (Campaigns) shows he participated in an (as then) unnamed campaign.  Item 38 (Record of Assignments) of the DA Form 20 shows, in pertinent part, he was assigned to the 10th Chemical Platoon (Airmobile) in the RVN from 14 May 1971 through 27 November 1971 and assigned to Headquarters and Headquarters Company, 1st Battalion (Airmobile), 501st Infantry Regiment in the RVN from
28 November 1971 to 25 January 1972.  Item 40 (Wounds) of the DA Form 20 is absent an entry.  Item 41 (Awards and Decorations) shows he was awarded the Bronze Star Medal, Air Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and the Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar.

4.  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 shows he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.

5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), issued at the time of his release from active duty (REFRAD) shows, in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded the Bronze Star Medal, Air Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and the Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar.  This document also shows the applicant was honorably REFRAD on 29 January 1972 after completing 2 years, 5 months, and 26 days net active service this period. 

6.  The applicant’s military service record contains a copy of a VA Form 07-3101 (VA Request for Information), dated 7 September 1978.  This document shows that an official of the VA Regional Office (VARO), Jackson, Mississippi, requested that the Department of the Army “furnish any additional and any outstanding service medical and clinical records” to the VARO.  This document 
also shows, in pertinent part, that the VARO was advised that, “1971 and 1972 clinical records from the 95th Evac[uation] Hospital are on file, but do not contain a record for Robert W. K____.”

7.  A review of the applicant's military service record reveals that he may be authorized additional awards that are not shown on his DD Form 214.

8.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His record does not contain any adverse information and he received conduct and efficiency ratings of “excellent” throughout his service.

9.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists campaigns for Vietnam.  This document shows the applicant participated in the Vietnam Counteroffensive Phase VII, Consolidation I, and Consolidation II campaigns.

10.  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 10th Chemical Platoon (Airmobile) in Vietnam, the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 6 (1974).

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 military medical personnel, and that the medical treatment was made a matter of official record.

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Good Conduct Medal is awarded to individuals who distinguish themselves by their exemplary conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  After 27 June 1950 to the present time, the current standard for award of the Good Conduct Medal is 3 years of qualifying service, but as little as 1 year is required for the first award in those cases when the period of service ends with the termination of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  


13.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

14.  Army Regulation 600-8-22 provides, in pertinent part, for 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, which includes the Vietnam Service Medal.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, he is entitled to award of the Purple Heart because he was wounded while serving in the RVN when an enemy artillery shell landed within a few feet of his location, he sustained hearing damage to both ears and tinnitus, and he was treated for his wounds at the 95th Evacuation Hospital.

2.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is authorized must have been sustained while in action against an enemy or as a result of hostile action, the wound must have required treatment by medical personnel, and a record of the medical treatment for the wound or injury received in action must have been made a matter of official record.


3.  There is no evidence the applicant was awarded the Purple Heart.  His name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.  There is no official documentary evidence in the applicant's military service record that supports his contention that he sustained a wound as a result of hostile action or was treated for such a wound by military medical personnel.  In addition, the evidence of record shows that 1971 and 1972 clinical records from the 95th Evacuation Hospital do not contain a record pertaining to the applicant.  Moreover, despite being advised to provide medical records in support of his request, the applicant failed to provide any additional documentary evidence in support of his claim.  Therefore, in view of the foregoing, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.   The evidence of record shows that the applicant completed a qualifying period of active duty enlisted service for award of the Good Conduct Medal.  Therefore, his record should be corrected to show award of the Good Conduct Medal.

5.  The evidence of record shows that the applicant participated in 3 campaigns during the Vietnam Conflict.  Therefore, his record should be corrected to show award of 3 bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__JP____  ___TK___  __DT___  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 the applicant the Good Conduct Medal for exemplary conduct, efficiency, and fidelity for the period 4 August 1969 to 29 January 1972;

     b.  deleting from Item 24 of his DD Form 214 the “VSM” (Vietnam Service Medal); and

     c.  adding to Item 24 of his DD Form 214 the Good Conduct Medal, Vietnam Service Medal with 3 bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.	    

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 the Purple Heart.




      	______T. S. K._______
                		CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017527



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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