RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070017907 


	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 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, in effect, award of the Purple Heart (PH).   

2.  The applicant states, in effect, that he was wounded in action in the Republic of Vietnam (RVN) during an enemy probe of the unit he was assigned to.  However, when he was hospitalized, he was suffering from a fever of unknown origin, which became the primary focus of his medical treatment.  He claims he was treated for the wound he received in action from a ricochet rock fragment and a surgeon who treated him indicated it was a combat wound and would be noted in his record.  He states he did not know the importance of the injury he received in action until later in life.  He claims that he has only now learned that his failure to verify he was properly credited with entitlement to the PH based on his combat-related wound had serious ramifications in receiving medical treatment.

3.  The applicant provides a self-authored statement 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 record shows that he initially enlisted in the Regular Army and entered active duty on 30 March 1965.  He was trained in and awarded military occupations specialty (MOS) 43E (Parachute Rigger).  

3.  On 3 April 1966, the applicant was honorably discharged, in the rank of private first class (PFC), for the purpose of immediate reenlistment.  The separation document (DD Form 214) he was issued at the time shows he 
earned the Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and the Marksman Marksmanship Qualification Badge with 
Rifle (M-14) Bar during the period of service covered by the separation document
(30 March 1965-3 April 1966).  
4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 10 May 1966 through 22 July 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 101st Quartermaster Company, 101st Airborne Division from 16 May 1966 through
12 April 1967; and to Headquarters and Headquarters Company (HHC), 2nd Battalion, 327th Infantry Regiment from 13 April 1967 through 19 July 1967.  

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 
20 November 1967.  

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that show the applicant was ever recommended for or awarded the PH.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.  

7.  On 9 January 1969, the applicant was discharged, in the rank of private/E-2 (PV2), by reason of misconduct.  The DD Form 214 he was issued at the time shows he received a general, under honorable conditions discharge (GD), and that he completed a total of 3 years, 6 months, and 18 days of creditable active military service and that he accrued 82 days of time lost due to confinement.  The separation document also shows that he earned the following awards:  National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal; Combat Infantryman Badge; Parachutist Badge; Expert Marksmanship Qualification Badge with Rifle Bar; and 2 Overseas Service Bars.  The PH is not included in the list of awards contained on the DD Form 214.  

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Roster.  The applicant's name is not included on this list of RVN battle casualties.  

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  


10.  Paragraph 2-13 of the awards regulation contains guidance on award of the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 provides a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase 1, Vietnam Counteroffensive Phase II, and the Vietnam Counteroffensive Phase III campaigns. 

11.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being wounded in action while serving in the RVN was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record. 

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited this record on 20 November 1967, nearly four months after he departed the RVN.  In effect, his audit was his verification that the information contained on the DA Form 20, to include the Item 40 and 41 entries, was correct at that time.  His MPRJ is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and it contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  Further, the PH is not included in the list of awards contained on his DD Form 214.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement related to award of the PH.   
5.  The evidence of record does show that based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation and 3 bronze service stars with his Vietnam Service Medal.  The omission of these awards from his record and separation document is an administrative matter that does not require Board action to correct.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will administratively correct his record 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

___x _  __x __  __x __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice related to award of the Purple Heart.  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 to show his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and 3 bronze service stars for wear on his already-awarded Vietnam Service Medal; and by providing him a correction to his separation document that includes these awards.




_____x _____
          CHAIRPERSON