RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20080000420 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 wounded on 5 May 1969 by enemy fire/rockets/mortars with injuries to his abdomen, pelvis, and colon.  He has received Department of Veterans Affairs (VA) disability compensation for his wounds.  He was too young to understand the importance of the award.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a VA Form 21-0781a (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Trauma); a Narrative Summary; and a DA Form 8-275-2 (Clinical Record Cover Sheet).

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 29 May 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 62E (Crawler Tractor Operator).

3.  The applicant arrived in Vietnam and was assigned to Company B, 14th Engineer Battalion on 6 November 1968.  On 21 January 1969, he was reassigned to the 59th Engineer Company.  He departed Vietnam on or about    5 May 1969 after being credited with participation in two campaigns.

4.  The applicant provided a Narrative Summary that indicates he suffered a multiple fragment wound of the abdomen with perforation of the ascending colon on 5 May 1969 as a result of hostile forces mortar fragments.

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.  Item      40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show he was wounded in action.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status) was completed on 11 June 1969.  The initial findings were that the applicant was wounded as a result of hostile action from a rocket or mortar attack.  The final findings were that he was injured when he was struck by shrapnel from an M-79 (grenade launcher) round.  The explosion resulted when an accidental discharge of an M-79 was made by another Soldier.

7.  The applicant was honorably released from active duty on 28 May 1970, in the rank and grade of Specialist Four, E-4 after completing 2 years of creditable active service with no lost time.  His DD Form 214 shows he was awarded the Expert Marksmanship Qualification Badge (Rifle M-14 and Rifle M-16), the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), one overseas bar, and the National Defense Service Medal.

8.  The applicant’s records contain no derogatory information.  His conduct and efficiency were rated as “excellent” throughout his service.

9.  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 by a medical officer, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.  

11.  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.

12.  Department of the Army General Orders Number 8, 1974, announced   award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U. S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters,        U. S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the initial findings into the circumstances surrounding the applicant’s injuries were that they were caused by fragments from enemy mortar or rocket rounds.  However, the final findings were that he was injured when he was struck by shrapnel from an M-79 round when another Soldier accidentally discharged an M-79.  Regrettably, since the final findings were that the applicant was not injured as the result of enemy action, he does not meet the eligibility criteria for award of the Purple Heart.

2.  The applicant completed 2 years of creditable active service with no lost time. He has no derogatory information in his records and his conduct and efficiency were rated as “excellent” throughout his service.  It appears he met the eligibility criteria for award of the Army Good Conduct Medal.

3.  The applicant was credited with participation in two campaigns and therefore is eligible to wear two bronze service stars on his Vietnam Service Medal.

4.  All units were later awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, this unit award should be added to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__cd____  __lmd___  __jcr___  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 him the Army Good Conduct Medal for the period 29 May 1968 through 28 May 1970; and

     b.  amending his DD Form 214 to add the Army Good Conduct Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation and to show he is eligible to wear two bronze service stars 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.  




__Carmen Duncan_______
          CHAIRPERSON