RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080001285 


	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 received shrapnel wounds from combat action in Vietnam on 9 October 1971.  He contends that even with these wounds on his forearm, which were treated by a medic, he continued on with the mission.   

3.  The applicant provides an eyewitness statement, dated 9 December 2007; a personal account of the incident; Rating Decisions, dated 10 May 2005 and 
27 March 2006, from the Department of Veterans Affairs (DVA); and a copy of his DD Form 214 (Report of Transfer or Discharge) for the period ending 5 April 1972.   

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 records covering his service in Vietnam are not available to the Board.  This case is being considered using reconstructed records, which primarily consist of his DD Form 214.  

3.  The applicant enlisted on 30 November 1970 for a period of 2 years.  He served as an armor crewman in Vietnam from 18 June 1971 to 2 April 1972.  On 5 April 1972, the applicant was released from active duty.  

4.  There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

5.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  The applicant provided an eyewitness statement, dated 9 December 2007, from his Tank Commander at the time in question.  He attests that on 9 October 1971 his troop was assigned to support the infantry in sweeping an area in the Que Son Valley and they came under enemy fire.  He states that a round exploded near his tank, that the applicant was hit with shrapnel in his right forearm, and that the medic treated the applicant’s wound.  He further states that the medic informed the applicant that if he returned back to the aid station he would receive the Purple Heart; however, the applicant decided to stay with the tank.   

7.  The applicant also provided Rating Decisions from the DVA which show that evaluation of herpes simplex, residuals papular lesions was increased to 
10 percent and evaluation of Post Traumatic Stress Disorder was increased to 
70 percent.     
 
8.  Records show the applicant participated in four campaigns during his assignment in Vietnam.

9.  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.

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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action, the eyewitness statement provided by the applicant is not sufficient as a basis for award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.  

2.  The applicant participated in four campaigns during his assignment in Vietnam which makes him eligible for award of the Vietnam Service Medal with four bronze service stars.

3.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  

4.  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

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.

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 the Republic of Vietnam Gallantry Cross with Palm Unit Citation and four bronze service stars for wear on his already-awarded Vietnam Service Medal on his DD Form 214 for the period ending 5 April 1972. 

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)                                         AR20080001285


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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