RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 May 2008
	DOCKET NUMBER:  AR20080002724 


	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:


M

Chairperson

M

Member

M

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, in effect, that he be awarded the Purple Heart. 

2.  The applicant essentially feels that he should have been awarded the Purple Heart, and states that he was wounded in action with powder burns to his eyes and ears from the explosion of a mine under his armored personnel carrier (APC).  He also states that the blast killed the driver of the APC, and that he also had a shrapnel wound on his right buttock.  He further states that he was with Randy B______ who now resides in Louisville, Kentucky, and that he received first aid at the first aid station.

3.  The applicant provides no additional evidence in support of this application.

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 show that he was inducted into the Army of the United States on 8 November 1966.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 
27 April 1967, and served in MOS 11B with Company B, 2nd Battalion, 35th Infantry Regiment.  He returned to the continental United States on 27 April 1968, and served at Fort Hood, Texas until he was honorably released from active duty.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued to him at the time of his release from active duty essentially shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with Two Bronze Service Stars, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with M-14 Rifle and M-16 Rifle Bars.  The applicant’s DD Form 214, does not show that he was awarded the Purple Heart.  

3.  On 30 April 1996, the applicant was transferred from the Louisiana Army National Guard to the United States Army Reserve Control Group (Retired Reserve) after completing more than 21 years of total service for pay.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart.  Further, a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  

5.  The applicant essentially feels that he should have been awarded the Purple Heart, and stated that he was wounded in action with powder burns to his eyes and ears from the explosion of a mine under his APC.  He also stated that the blast killed the driver of the APC, and that he also had a shrapnel wound on his right buttock.  He further stated that he was with Randy B______ who now resides in Louisville, Kentucky, and that he received first aid at the first aid station.

6.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.

7.  The applicant’s records show that he served 2 years of continuous enlisted active duty service from 8 November 1966 to 7 November 1968.  However, his military records do not show that he was awarded the Good Conduct Medal for this period of service.  His conduct and efficiency ratings were rated as "excellent" for the entire period of this qualifying period of service, and there is no derogatory information in the available records which could be a disqualifying factor for this period of active duty service for award of the Army Good Conduct Medal.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in 
Vietnam.  This document shows that at the time of the applicant’s assignment to 

the 2nd Battalion, 35th Infantry Regiment, the battalion was cited for award of:

	a.  the Valorous Unit Award by Department of the Army General Orders Number 43, dated 1972;

	b.  the Meritorious Unit Commendation by Department of the Army General Orders Number 17, dated 1969;

	c.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 48, dated 1971; and

	d.  the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 53, dated 1970.

9.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with Two Bronze Service Stars, signifying that he participated in two campaigns during his tour in Vietnam.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he actually participated in four campaigns, namely, the Vietnam Counteroffensive Phase II campaign, the Vietnam Counteroffensive Phase III campaign, the Tet Counteroffensive campaign, and the Vietnam Counteroffensive Phase IV campaign.

10.  Army Regulation 600-8-22 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the records of medical treatment must have been made a matter of official Army records.

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s active duty service, 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 except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 11 November 1956 was not disqualifying. 

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned.  However, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  The evidence provided by the applicant was carefully considered.  However, this evidence, including the statement that he was with Randy B______, which does not imply anything by itself, does not begin to approach the threshold of proving, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action.  There is no evidence in the applicant's records, and the applicant failed to provide evidence which conclusively proves that he was wounded or injured as a result of hostile action.  In view of the foregoing, there is insufficient basis upon which to award the Purple Heart to the applicant in this case.

4.  The applicant served 2 years of continuous enlisted active duty service from 
8 November 1966 to 7 November 1968, and all of his conduct and efficiency ratings were rated as "excellent" for the entire period of this qualifying period of service.  There is also no derogatory information in the available records which could be a disqualifying factor for this period of active duty service for award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award him the Good Conduct Medal for the period 8 November 1966 to 7 November 1968, and correct his military records to show the award of the Good Conduct Medal.

5.  General orders awarded the Valorous Unit Award, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 2nd Battalion, 35th Infantry Regiment while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Valorous Unit Award, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and correction of his military records to show these unit awards.

6.  Although the applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with two bronze service stars, signifying that he participated in two campaigns during his tour in Vietnam, he actually participated in four campaigns during his tour in Vietnam.  Therefore, he is entitled to correction of his military records to show four bronze service stars to be affixed to his already awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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 Good Conduct Medal for the period 8 November 1966 to 7 November 1968 while serving as a specialist four;

	b.  awarding him the Valorous Unit Award, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

	c.  deleting the two bronze service stars shown on his DD Form 214; and
	d.  adding four bronze service stars to be affixed to 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 awarding the applicant the Purple Heart.  




      ___        XXX                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080002724



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508