RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080001054 


	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 that his separation document (DD Form 214) be corrected by adding the award of the Purple Heart.

2.  The applicant states, in effect, he was injured on 27 May 1968 in the Republic of Vietnam.  He also states that while he was being treated for his injury he received the award of the Purple Heart without the citation.  The orders were never published to add the Purple Heart to his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, a personal statement, and an eyewitness statement with three photographs.

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 enlisted in the Regular Army on 28 November 1966.  He served as an enlisted Soldier until he was honorably discharged from active duty to accept appointment as a warrant officer, on 20 November 1967.  His DD Form 214 shows he had completed 
11 months and 23 days of Net Service This Period.

3.  On 21 November 1967, the applicant entered the U.S. Army Reserve as a warrant officer.  He served with the 176th Aviation Company in the Republic of Vietnam during the period 20 December 1967 to 7 December 1968.  

4.  He served continuously as a warrant officer until he was honorably released from active duty due to early release from the Warrant Officer Aviators program and was transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri on 20 May 1970.  He completed 2 years and 6 months of Net Service This Period. 
5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the awards of the National Defense Service Medal, Army Aviation Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Distinguished Flying Cross, and the Air Medal.  However, it does not show the award of the Purple Heart.

6.  There are no general orders in the available records which show the applicant was awarded the Purple Heart.

7.  There are no medical records in the applicant's official military personnel file to show he sustained wounds as a result of hostile action or to show he was treated for wounds sustained as a result of hostile action.

8.  A Disposition Form from the 14th Combat Aviation Battalion, Office of the Flight Surgeon dated 4 June 1968, shows the applicant was granted medical clearance to perform flight duty following an aircraft accident.

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

10.  The personal statement the applicant submitted states, in effect, he was assigned to the 176th Assault Helicopter Company based in Chu Lai in I Corps.  On 28 May 1968, he was flying as a co-pilot with his aircraft commander performing troop insertion for the Americal Division at landing zone Baldy, when the helicopter received extensive automatic fire and took multiple hits.  He received shrapnel in his right hand, the crew chief received a minor head wound, and a troop was wounded.  They managed to land at a safe location south of landing zone Baldy and there they shut down the aircraft.  

11.  He further states, that while he was waiting to have his hand looked at by a medical officer, a colonel from the Americal Division handed him the medal for the Purple Heart.  The doctor that examined him told him it was too hard to remove such a large amount of shrapnel from his hand due to the small bones in his hand.  Several weeks later, the executive officer from the 176th Aviation Company asked him if he wanted a Purple Heart .  He told the executive officer he had already received one, so he assumed the paperwork was handled properly and the Purple Heart would be recorded on his DD Form 214.

12.  The eyewitness statement with photographs that were submitted by the applicant addressed the same incident that occurred on 27 May 1968.

13.  Army Regulation 672-5-1 (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.  This regulation also provides that there are no time limitations on requests for award of the Purple Heart.  Item (5) (g) of this same regulation states, in pertinent part, that an example of an injury or wound which clearly does not qualify for award of the Purple Heart is an accident, to include explosive, aircraft, vehicular, and other accidental wound not related to or caused by enemy action.

14.  A review of the applicant's records indicates entitlement to additional awards that are not shown in item 24 of his DD Form 214.

15.  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 the unit, to which the applicant was assigned, 176th Aviation Company, was cited for an award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 46, dated 1969.

16.  The applicant's records show that he was awarded the Vietnam Service Medal.  However, his DD Form 214 does not show any bronze service stars indicating campaign credit.

17.  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 Counteroffensive, Phase III (1 June 1967 to 29 January 1968); Tet Counteroffensive (30 January 1968 to 1 April 1968); Vietnam Counteroffensive, Phase IV (2 April 1968 to 30 June 1968); Vietnam Counteroffensive, Phase V 
(1 July 1968 to 1 November 1968); and Vietnam Counteroffensive Phase VI  
(2 November 1968 to 22 February 1969).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign and that a silver service star is authorized in lieu of five bronze service stars.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected by adding the award of the Purple Heart.

2.  There is no evidence to show that the applicant was wounded by shrapnel in his right hand in the Republic of Vietnam, on 27 May 1968.  Also, regulatory guidance provides that an injury or wound which clearly does not qualify for award of the Purple Heart is an accident, to include explosive, aircraft, vehicular, and other accidental wounds not related to or caused by enemy action.  

3.  Therefore, it is possible that the medical clearance granted to the applicant on 4 June 1968 could have been generated by the incident the applicant referred to on 27 May 1968.  If so, he is not entitled to correction of his records to show the award of the Purple Heart.

4.  Evidence shows the applicant is authorized the award of 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.

5.  Evidence shows the applicant was assigned to a unit in the Republic of Vietnam that participated in five campaigns.  Therefore, he is entitled to correction of his records to show one silver service star to be affixed to his Vietnam Service Medal.

6.  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

___X___  __X____  ____X____  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 award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and one silver service star 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.




      _________X_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001054



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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