IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080001320 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Through a Member of Congress, the applicant requests, in effect, award of the Purple Heart (PH).  

2.  The applicant states, in effect, that the Army was keeping sloppy records and that he was wounded in the Republic of Vietnam (RVN) at the same time his platoon leader was wounded when he stepped on a land mine, and because he was in the field, he had no way to follow up on the PH paperwork.  He states that it took his platoon leader over 30 years to receive his PH and he wishes to now receive his PH for the injuries he received.  

3.  The applicant provides the following documents in support of his application:  Congressional Inquiry; Self-Authored Statement; Department of Veterans Affairs (VA) Rating Decision, dated 18 October 2005; Doctor's Statement with related documents, dated 29 November 2007; 4 Witness Statements; 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 enlisted in the Regular Army and entered active duty on 27 May 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman), 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 that he served in the RVN from 27 October 1968 through 28 December 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company C, 2nd Battalion, 4th Infantry Regiment, from 2 November 1968 through 2 June 1969, performing duties in MOS 11B as a grenadier.  It also shows that he was assigned to A Troop, 3rd Squadron, 17th Cavalry Regiment, from 3 June through 25 December 1969, performing duties as a door gunner.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Army Commendation Medal (ARCOM); Air Medal (AM); Vietnam Service Medal (VSM); RVN Campaign Medal with Device 1960; and Combat Infantryman Badge (CIB).  The PH is not included in the list of awards contained in Item 41.

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any military medical treatment records that show he was ever treated for a combat related wound or injury while serving in the RVN.  


6.  On 28 December 1969, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 7 months, and 2 days of active military service.  The DD Form 214 he was issued at the time does not include the PH in the list of awards contained in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) and the applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

7.  The applicant provides 4 third-party statements from individuals who served with him in the RVN.  His platoon leader provides a statement that indicates that he was wounded in the RVN on 29 March 1969, when he stepped on a land mine.  He states that the applicant was his radio operator at the time and was directly behind him, and as he recalls the applicant fell into the hole behind him.  He states that due to the applicant's closeness during this ordeal, it is hard to imagine that he was not hit by shrapnel.  He also provides statements from three other individuals who state that the witnessed the applicant being wounded at the same time the platoon leader was wounded.  One statement also indicates the applicant was treated by a field medical corpsman (MEDIC), who removed shrapnel from the applicant's arm and facial area.  

8.  The applicant also provides a VA rating decision that granted service connection for metallic fragment to the right eye.  It indicates that there were no military medical treatment records that showed he was treated for this condition; however, VA decided to resolve reasonable doubt in the applicant's favor and grant service connection for this condition because the applicant was a combat veteran and based on the applicant's description of being involved in a firefight and receiving a shrapnel wound.  The applicant also provides a doctor's statement, dated 29 November 2007, which indicates a metallic foreign body was removed from the applicant right lower lid in 2002, and that this was consistent with shrapnel from an explosive device.  

9.  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 roster.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), which is a web based index maintained by the Military Awards Branch, United States Army Human Resources Command (HRC) that contains award orders issued during the Vietnam era, was also reviewed.  There were no PH orders pertaining to the applicant on this system.  


10.  Army Regulation 600-8-22 (Military Awards) prescribes 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 award a 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 a medical officer; and a record of this medical treatment must be supported by medical treatment records that were made a matter of official record.  

11.  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.  A silver service star is awarded in lieu of 5 bronze service stars to denote participation in five campaigns.   

12.  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 units (4th Infantry Regiment and Troop A, 3d Squadron, 17th Cavalry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  It also shows that during his tenure of assignment, participation credit was granted for the Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam Summer-Fall 1969, and Vietnam Winter-Spring 1970 campaigns.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on his having been wounded in action in the RVN was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence not only that the wound for which the award is being made was received as a result of enemy action, but also that it required treatment by a military medical officer, and a record of this 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, and the list of earned awards in Item 41 does not include 
the PH.  There are no orders or other documents on file in his MPRJ that show he was ever recommended for or awarded the PH by proper authority, or that confirm he was treated for a combat related wound or injury while serving in
the RVN.  


3.  Further, the PH is not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD. In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct at the time the separation document was prepared and issued.  There are no PH orders for him on file in the ADCARS maintained by HRC, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

4.  Absent any evidence of record to corroborate the facts outlined in the supporting third-party statements and/or medical documents provided by the applicant, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the PH at this late date.  The applicant and all others concerned should know that this action related to award of the PH 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.  

5.  The evidence of record also confirms that based on his RVN service 
and campaign participation, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 1 silver service star with his Vietnam Service Medal.  The omission of these awards form his record and separation document is an administrative matter 
that does not require Board action.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will administratively correct his record as outlined 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 related to award of 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 his entitlement to the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and 
1 silver service star with his Vietnam Service Medal; and by providing him a correction to his separation document that includes these awards.  




       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080001320



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ABCMR Record of Proceedings (cont)                                         AR20080001320


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