RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 April 2008
	DOCKET NUMBER:  AR20080000614 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. 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 that his records be corrected to show the award of the Purple Heart.

2.  The applicant states, in effect, he received shrapnel wound to the right side of his head in March 1970, while serving in specialty 1542, Infantry Unit Commander, in the Republic of Vietnam.  His Department of Veterans Affairs (DVA) rating decision dated 9 January 2006 confirms his medical condition.  He is requesting the award of the Purple Heart, because he earned it and he would like to have his records show the correct entitlements.

3.  The applicant provides a copy the DVA rating decision dated 9 January 2006.

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 military personnel record shows he was commissioned in the Army of the United States as a Reserve Officer in the rank of second lieutenant, on 22 April 1969.  Item 23 (Specialty Number and Title) of his DD Form 214 show the entry 1542, Infantry Unit Commander.

3.  Item 9 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record, Part II) shows he served in the Republic of Vietnam during the period 13 January 1970 to 9 January 1971.

4.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri on 9 April 1971.  He had completed 1 year, 11 months, and 18 days of net service this period.

5.  In a military physical examination, the applicant stated he sustained a wound to his right cheek from an explosion which occurred at Fort Benning, Georgia in 1969.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the awards of the Soldiers Medal, Army Commendation Medal with "V" Device, Air Medal (2nd Award), Combat Infantryman Badge, Bronze Star Medal, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal with 2 bronze service stars, 2 Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bars M-16 and M-14.  However, it does not show the award of the Purple Heart.

7.  The DVA rating decision dated 9 January 2006, shows the applicant was evaluated for shrapnel wounds which was rated as zero percent disabling.

8.  A review of the applicant's medical records do not show he sustained shrapnel wounds as a result of hostile action or show he was treated for wounds sustained as a result of hostile action.

9.  A review of the Republic of Vietnam Casualty Roster does not show the applicant's name listed among those wounded.

10.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

11.  A review of the applicant's record indicates entitlement to additional awards that are not shown in Item 24 of his DD Form 214.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This document shows that all units assigned in the Republic of Vietnam from 8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order Number 8, dated 1974.



13.  Appendix B of Army Regulation 600-8-22 shows that based on the applicant's dates of service in the Republic of Vietnam, he participated in the Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970), Sanctuary Counteroffensive (1 May 1970 to 30 June 1970), and the Vietnam Counteroffensive Phase VII (1 July 1970 to 30 June 1971).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show the award of the Purple Heart, because he received shrapnel wounds to the right side of his head in March 1970, while serving as an Infantry Unit Commander in the Republic of Vietnam.  He argues his DVA rating decision dated 9 January 2006 confirms his medical condition.

2.  However, there is no evidence in his medical records which show he received shrapnel wounds as a result of hostile action.  To the contrary, the applicant stated he sustained a wound to his right cheek from an explosion which occurred at Fort Benning, Georgia in 1969.  Additionally, his name does not appear on the Republic of Vietnam Casualty Roster.  Therefore, he is not entitled to correction of his records to show the Purple Heart.

3.  Evidence shows the applicant is authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his records to show this foreign unit award.

4.  Evidence shows the applicant served in the Republic of Vietnam during three campaigns.  Therefore, he is entitled to correction of his records to show three bronze service stars to be affixed on his Vietnam Service Medal.

5.  Evidence shows that the applicant’s records contain administrative error which does 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

__LDS __  __DKH__  __EEM__   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 to award the Purple Heart.

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 the awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and three bronze service stars to be affixed to his Vietnam Service Medal. 

3.  The Board wants the applicant and all others concerned to 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.




____Linda D. Simmons__
          CHAIRPERSON