RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080000294 


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

2.  The applicant states, in effect, he was injured while serving in combat in the Republic of Vietnam (RVN).  He states that he was hit in the mouth and lost some back teeth, and his left eardrum was busted, which resulted in his loss of hearing in that ear.  He also states that he was injured a second time during combat when he was hit by flying metal that resulted in his right wrist being cut, which required stitches.   

3.  The applicant provides the following documents from his military records that he still has in support of his application:  Immunization Record; Personal Clothing Request; Individual Training Record; Bronze Star Medal Orders; Separation Processing Documents; Reassignment Orders; Certificates of Appreciation; and Separation Document (DD Form 214).  

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 was inducted into the Army of the United States and entered active duty on 12 April 1968.  He was trained in and awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman), and sergeant (SGT) is the highest rank he attained while serving on active duty.  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 8 September 1968 through 27 August 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 2nd Battalion, 22nd Infantry Regiment, performing duties in MOS 11C as a gunner.  
4.  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 41 does show that he earned the following awards:  National Defense Service Medal (NDSM); Bronze Star Medal (BSM); Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM); Combat Infantryman Badge (CIB); Expert Marksmanship Qualification Badge with Automatic Rifle and Rifle Bars; Sharpshooter Marksmanship Qualification Badge with Mortar Bar; and Marksman Marksmanship Qualification Badge with Pistol Bar.  Item 48 (Date of Audit) shows that the applicant audited the DA Form 20 on 27 January 1970.  

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

6.  On 10 April 1970, the applicant was honorably released from active duty after completing a total of 1 year, 11 months, and 29 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards:  NDSM; BSM; VSM; RVNCM; and CIB.  The PH is not included in the list of awards entered on the separation document, and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of RVN casualties.  

8.  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.  

9.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  

10.  Table B-1 of the awards regulation contains 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 V, Vietnam Counteroffensive Phase VI, and TET 69 Counteroffensive, and Vietnam Summer-Fall 1969 campaigns.  

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (2nd Battalion, 22nd Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being twice injured in combat 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.  The PH is also not included in the list of awards contained in Item 41, and the applicant last audited this record on 27 January 1970, subsequent to his departure from 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, were correct at that time.   In addition, the applicant's 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.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  

3.  Further, the PH is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct on the date the separation document was prepared and issued.  


4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA 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.  

5.  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.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

6.  The evidence of record does show that the applicant earned the Expert Marksmanship Qualification Badge with Automatic Rifle and Rifle Bars, Sharpshooter Marksmanship Qualification Badge with Mortar Bar, and 
Marksman Marksmanship Qualification Badge with Pistol Bar, which were 
not included in the list of awards contained on his DD Form 214.  In addition, based on his RVN service and campaign participation, he is entitled to the 
RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 4 bronze service stars with his VSM.  The omission of these awards from his 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 and separation document 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 Expert Marksmanship Qualification Badge with Automatic Rifle and Rifle Bars, Sharpshooter Marksmanship Qualification Badge with Mortar Bar, 
Marksman Marksmanship Qualification Badge with Pistol Bar, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 4 bronze service stars with his VSM; and by providing him a correction to his separation document that includes these awards.




      ________x______________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000294



2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508