RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20070017547 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Hassenritter

Member

Mr. Edward Montgomery

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 correction of his records to show award of the Purple Heart. 

2.  The applicant states, in effect, that he was wounded on 19 January 1967 by enemy fire and that he was treated in the field by a medic. 

3. The applicant provides three witness statements from former fellow Soldiers. 

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 was inducted into the Army on 2 November 1965 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant arrived in Vietnam with A Company, 1st Battalion, 8th Infantry, 4th Infantry Division on or about 15 September 1966.  He departed Vietnam on or about 29 August 1967 after being credited with participating in two campaigns.

4.  On 30 August 1967, the applicant was honorably released from active duty in the rank of Sergeant/E-5 after completing 1 year, 9 months, and 29 days of creditable active service with no time lost.  

5.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 August 1967 shows the applicant was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge (Rifle), the Expert Marksmanship Qualification Badge (.45 Caliber Pistol), the Expert Marksmanship Qualification Badge (Grenade Launcher), the Sharpshooter Marksmanship Qualification Badge (Automatic Rifle), and one Overseas Bar.

6.  There are no general orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.  

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded, and item 41 (Awards and Decorations) does not show award of the Purple Heart.  

8.  The applicant's Army Medical Treatment Records are unavailable.  

9.  The applicant submitted an undated eyewitness statement from a former fellow Soldier assigned to his unit.  The author stated, in effect, that he was attached to the applicant's unit and served as a medical aid man.  He continues that on 19 January 1967 enemy forces ambushed their platoon.  The author further stated that the applicant sustained a wound to his leg by an enemy round.  The author states "I was called to administer first aid to Sgt O____, and cleaned and bandaged his wound.  Later when the medevac chopper came to take out our 4 KIA, I tried to get Sgt O____to get on the chopper and get back to see a doctor, but he refused saying that he was not going to leave his guys.  He was hobbling, but refused to go in to the battalion aid station."

10.  The applicant submitted two witness statements from former fellow Soldiers assigned to his unit.  The authors both state that they were present the day the applicant was wounded in his left leg by enemy rifle fire.  The authors further state that the applicant had a flesh wound and was treated by the company medics.  The applicant refused to return to the base camp for treatment, in part because they needed him in the field and part because the medics continued treating the wound in the field.

11.  There is no evidence the applicant received the first award of the Army Good Conduct Medal.  His records do not contain any adverse information and his DA Form 20 (Enlisted Qualification Record) shows his conduct and efficiency ratings as "excellent" throughout his period of service.




12.  Army Regulation 600-8-22 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, and the medical treatment must have been made a matter of official record. 

13.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated that the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  At the time, a Soldier's conduct and efficiency ratings must 
have been rated as "excellent" for the entire period of qualifying service.

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 1st Battalion, 8th Infantry, it was cited for award of the Presidential Unit Citation for the period 18-26 May 1967 based on Headquarters, Department of the Army General Orders Number 69, dated 1969.

15.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment to the 1st Battalion, 8th Infantry, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 October 1966 through 31 October 1969 based on Headquarters, Department of the Army General Orders Number 53, dated 1970.

16.  Department of the Army Pamphlet 672-3 shows that, at the time of the applicant’s assignment to the 1st Battalion, 8th Infantry, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 
October 1966 through 28 July 1969 based on Headquarters, Department of the Army General Orders Number 3, dated 1970.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart.  The witness statements submitted by the former fellow Soldiers confirm that the applicant was treated for a wound to his leg, but failed to mention that they were present at the time of the actual incident.  The witness statement submitted by the unit medic confirms that the applicant was treated for a wound to his left knee.  However, there are no documents provided in this case that shows the medic was assigned or attached to the applicant's unit during time of the incident.  (i.e., that this individual really is who he says he is)

2.  In the absence of military records or other corroborating evidence which show the applicant was injured as a result of hostile action, there is an insufficient basis for award of the Purple Heart in this case.

3.  The applicant was separated in the rank of Specialist Four with over two years of creditable active service with no time lost.  Therefore, it appears the applicant met the eligibility criteria for award of the Army Good Conduct Medal (1st Award) for the period 2 November 1965 through 30 August 1967 based on completion of a period of qualifying service.

4.  The applicant was assigned to a unit during a period of time this unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Presidential Unit Citation.  His participation in two campaigns makes him eligible to wear two bronze service stars to be worn on his Vietnam Service Medal.  His DD Form 214 should be amended to add these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__LDS __  __DKH __  __EM  __  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

	a.  by awarding the applicant the Army Good Conduct Medal 
(1st Award) for the period 2 November 1965 through 30 August 1967; and

	b.  by amending his DD Form 214 to add the Army Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Presidential Unit Citation, and two bronze service stars to be worn on his already-awarded Vietnam Service Medal.

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 award of the Purple Heart.




						____Linda D. Simmons__
          CHAIRPERSON