IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080003119 


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.  The applicant requests, in effect, award of the Purple Heart (PH). 

2.  The applicant states, in effect, military medical personnel removed a piece of shrapnel from his hand in 1970.   

3.  The applicant provides a Chronological Record of Medical Care (SF 600) in support of his 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 record shows that he initially served on active duty in the Regular Army (RA) from 21 May 1952 through 21 March 1958, at which time he was honorably released from active duty after completing 5 years, 9 months, and 22 days of active military service.  The separation document (DD Form 214) he was issued at the time shows he earned the National Defense Service Medal (NDSM), Parachutist Badge, and Army Good Conduct Medal (AGCM) during that period of active duty service.   

3.  On 13 June 1958, the applicant reenlisted in the RA for 6 years.  He served for 6 years until being honorably discharged for the purpose of immediate reenlistment on 12 June 1964.  The DD Form 214 he was issued at the time shows he earned the Expert Marksmanship Qualification Badge with Carbine, Rifle Bars during that period of active duty service.    

4.  On 13 June 1964, the applicant reenlisted in the RA for 6 years.  He served for 5 years, 9 months, and 3 days until being honorably discharged for the purpose of immediate reenlistment on 15 March 1970.  The DD Form 214 he was issued at the time shows he earned the AGCM (2nd Award), NDSM 1st Oak Leaf Cluster (2nd Award), Army Commendation Medal (ARCOM) 1st Oak Leaf Cluster (2nd Award), Parachutist Badge, and United States Air Force Outstanding Unit Award (USAFOUA) during that period of active duty service.

5.  On 16 March 1970, the applicant reenlisted on his final enlistment.  His 
Enlisted Qualification Record (DA Form 20) shows he was awarded military occupational specialty (MOS) 71Q (Information Specialist) on 1 April 1968, and that he was promoted to sergeant first class (SFC), the highest grade he held while serving on active duty, on 14 March 1969.  It also shows he served in the  Republic of Vietnam (RVN) from 1 September 1970 through 27 August 1971.  

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his RVN tour, he was assigned to the 101st Administration Company, 101st Airborne Division, performing duties in MOS 71Q as an information specialist.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 6 October 1971.  

7.  The applicant's Military Personnel Records Jacket (MPRJ) contains a SF 600, which shows the applicant had a piece of shrapnel removed from his hand on 
31 December 1970.  This document provides no information regarding how the shrapnel wound was incurred.  His MPRJ is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving in the RVN.  

8.  On 31 August 1972, the applicant was honorably released from active duty for the purpose of retirement.  The separation document (DD Form 214) he was issued shows he completed a total of 20 years, 3 months, and 1 day of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during this period of active duty service:  AGCM (3rd Award), Bronze Star Medal (BSM); Meritorious Service Medal (MSM); Air Medal (AM) with "V" (Valor) Device; ARCOM 2nd Oak Leaf Cluster (3rd Award); Vietnam Service Medal (VSM); and RVN Campaign Medal (RVNCM).  

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, the applicant's name was not included on this list.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch, United States Army Human Resources Command (HRC), which is a web based index containing General Orders issued for the Vietnam era, was also completed and no PH orders pertaining to the applicant are on file. 

10.  Army Regulation 600-8-22 (Military Awards) prescribes the 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 support award of the 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 military medical personnel; and a record of this medical treatment must have been 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.  Table B-1 of the awards regulation contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive Phase VII and 
Consolidation I 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 unit (101st Administration Company) received the RVN Gallantry Cross with Palm Unit Citation. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on shrapnel removed from his hand by military medical personnel on 31 December 1970, was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is also not included in the list of awards contained in Item 41, and the applicant last audited this record on 6 October 1971, subsequent to his departure from the RVN.  In effect, his audit was his verification that the information contained on the DA Form 20, to include the Item 40 and 41 entries, were correct at that time.  Further, the PH is not included in the list of awards contained on the applicant's 31 August 1972 DD Form 214, which he authenticated with his signature on the date of his retirement.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct on the date the separation document was prepared and issued.  

3.  In addition, the applicant's MPRJ is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Although it contains a SF 600 that indicates he had a piece of shrapnel removed from his hand on 31 December 1970, this document gives no indication that the shrapnel was received as a result of enemy action, and does not indicate that a PH was recommended or awarded for this wound.  

4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties, and there are no PH orders on file in the ADCARS maintained by HRC.  Therefore, absent any evidence of record confirming the applicant's shrapnel wound was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, 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 in this case.  

5.  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 related to award of the PH.  The applicant and all others concerned should know that this decision 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.  

6.  The evidence of record does show that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation and 2 bronze service stars with his VSM.  The omission of these awards from his separation document is an administrative matter that does not require Board action to correct.  Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri, will administratively correct his record and separation document 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 related to award of the Purple Heart.  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 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 and 2 bronze service stars 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)                                         AR20080003119



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ABCMR Record of Proceedings (cont)                                         AR20080003119


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