RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070018414 


	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 that he was injured when his bunker was destroyed by a mortar round during the Vietnam War.  He states he was air-lifted to Japan for surgery and a pin was inserted into his right ankle to hold the bone together.  He also states that his record should reflect award of the Purple Heart.  He states that he did not receive the Purple Heart because he was not returned to Vietnam after the surgery.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter, dated 26 February 1997, from a Staff Psychiatrist at the Department of Veterans Affairs (DVA); two handwritten letters from a physician at the DVA; a letter, dated 4 November 1996, from an Outreach Specialist at the DVA; a letter, dated 31 March 1998, from a Post Traumatic Stress Disorder (PTSD) Staff Psychiatrist; and letter, dated 12 May 2005, from a DVA Staff Physician.

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 of the United States on 22 May 1968.  After completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was assigned to Vietnam on 8 November 1968 with Company C, 3rd Battalion, 8th Infantry, 4th Infantry Division as a rifleman.  

3.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.  
4.  The applicant’s medical records show he was treated for a fractured ankle on 29 May 1969.  Records do not show he received this injury as a result of hostile action.  

5.  He departed Vietnam on 24 June 1969 and was credited with participation in the Vietnam Counteroffensive Phase VI Campaign, the Tet 69 Counteroffensive Campaign, and the Vietnam Summer-Fall 1969 Campaign.

6.  On 23 October 1969, the applicant was placed on physical profile for a screw in his ankle with numeral designators of 11T3111.  His assignment limitations were listed as no crawling, stooping, running, jumping, prolonged standing or marching.

7.  On 25 March 1970, the applicant was placed on physical profile for the healing of a fracture of his right ankle with numerical designators of 11P3111.  His assignment limitations were no running or jumping, walking beyond one-half mile, and no wearing of combat boots.

8.  The applicant underwent a separation physical examination on 2 April 1970.  His Report of Medical Examination shows he was evaluated as normal in all of the clinical area, except his lower extremities and identifying body marks.  The examining physician indicated the applicant had a surgical scar from an old fracture and a surgical scar on his right ankle.  There is no evidence which indicates these scars were the result of injuries sustained as a result of hostile action.  

9.  The applicant was released from active duty on 21 May 1970.  His DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, the Expert Marksmanship Qualification Badge, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Second Class Gunner with Machine Gun Bar as authorized awards.  

10.  The applicant provided six letters from staff at the DVA, Medical Center in New Orleans, Louisiana.  The letters indicate the applicant was a client at the Veterans Affairs Medical Center in New Orleans, Louisiana and he was being treated with antidepressant medications for PTSD and other medical problems.  

11.  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 the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

12.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal with Device (1960).  This medal was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

13.  Army Regulation 600-8-22, in pertinent part, authorizes 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.  

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 3rd Battalion, 8th Infantry, this unit was cited for award of the Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 3, dated 1970.

15.  Department of the Army Pamphlet 672-3 also shows that, at the time of applicant's assignment to the 3rd Battalion, 8th Infantry, this unit was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders which authorize award of the Purple Heart to the applicant.  His name is not listed on the Vietnam Casualty Roster.

2.  The applicant contends he was injured when his bunker was destroyed by a mortar round during the Vietnam War.  However, his medical records do not verify he was wounded as a result of hostile action in Vietnam.  Therefore, there is insufficient evidence on which to base correction of his records to show award of the Purple Heart.

3.  The applicant was assigned to a unit during a period 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.  Therefore, these awards should be added to his DD Form 214.

4.  The applicant served a period of qualifying service in Vietnam for award of the Republic of Vietnam Campaign Medal with Device (1960).  

5.  The applicant received credit for participation in three campaigns during the Vietnam War.  Therefore, his DD Form 214 should be administratively corrected to show three bronze service stars for wear on his Vietnam Service Medal.

6.  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

JM______  CD______  QS______  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 to show award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Republic of Vietnam Campaign Medal with Device (1960), and three bronze service stars on his already-awarded Vietnam Service Medal. 




                        JM__________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070018414


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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