IN THE CASE OF:	  

	BOARD DATE:	  5 JUNE 2008

	DOCKET NUMBER:  AR20080003263 


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

2.  The applicant states, in effect, he ran over an enemy placed mine with a vehicle in the Republic of Vietnam on 12 November 1969, but his DD Form  
214 does not show the award of the Purple Heart.

3.  The applicant provides a copy of his DD Form 214, a chronological record of medical care, an abbreviated clinical record dated 12 November 1969, a DA Form 20 (Enlisted Qualification Record), and a VA Form 21-4138 (Statement in Support of Claim).

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 23 January 1967.  He completed the necessary training and was awarded the military occupational specialty (MOS) 62M (Rough Terrain Forklift and Loader Operator).

3.  He served with Company A, 864th Engineer Battalion (Construction) in the Republic of Vietnam during the period 6 February 1969 to 31 December 1969.

4.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri on 1 January 1970.  He completed 2 years, 11 months, and 9 days 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, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Pistol Bar, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and 2 Overseas Service Bars.  However, it does not show the award of the Purple Heart.

6.  The applicant's chronological record of medical care and abbreviated clinical record dated 12 November 1969, noted the applicant's pertinent history, chief complaints, physical examination, and his progress.  The report states, in effect, that the applicant was driving a ten ton truck on an access road from his company area about "0745" when the vehicle ran over a mine.  The report continues that he was not rendered unconscious, and was picked up by an ambulance and taken to the aid station where he was evaluated and treated.  He complained about cuts and abrasions to his extremities, painful right heel, and mild discomfort to his mid back.

7.  The health records further noted abrasions to legs and right arms with 2 cm curved laceration to his right hand.  Superficial wounds were cleaned and dressed.  His foot and back were X-rayed which showed no apparent fractures.  The applicant was released to his company area for additional rest and observation.

8.  A USARV Form 157-R (Recommendation for Decorations for Valor or Merit) dated 12 November 1969 was initiated by the applicant's commander, which shows the commander recommended the applicant be awarded the Purple Heart.

9.  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 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.

10.  Army Regulation 600-8-22, paragraph 2-8b(3) states, in pertinent part, that when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the applicant was participating in direct or indirect combat operation is a necessary prerequisite, but is not sole justification for award.  Paragraph (4)(b) of this same regulation states, in pertinent part, that an example of an injury or wound which clearly justify award of the Purple Heart is an injury caused by enemy placed mine or trap.

11.  Review of the applicant's records indicates entitlement to additional awards and decorations not shown in item 24 of his DD Form 214.

12.  Army Regulation 672-5-1, in effect at the time when the service member was discharged, required that throughout a qualifying period of service for award of the Good Conduct Medal the enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.

13.  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 that all units assigned in the Republic of Vietnam from 8 February 1962 through 28 March 1973 were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, based on Department of the Army General Order Number 8, dated 1974.

14.  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 credits.

15.  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 VI (2 November 1968 to 22 February  
1969); Tet 69 Counteroffensive, 1969 (23 February 1969 to 8 June  
1969); Vietnam Summer-Fall 1969 (9 June 1969 to 31 October 1969), and the Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

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

2.  Evidence of record shows that the applicant was wounded in the Republic of Vietnam on 12 November 1969 when his vehicle ran over an enemy placed mine.  He was taken to the aid station where he was evaluated and treated for abrasions to his legs and right arm with a 2 cm curved laceration to his right arm. His personnel record shows that his commander's intent was to award him the Purple Heart.  As such, the preponderance of evidence shows that the applicant is entitled to the Purple Heart. 

3.  Records show he is entitled to the first award of the Army Good Conduct Medal for the period 23 January 1967 to 1 January 1970 based on completion of a period of qualifying service with the termination of a period of Federal military service.  He received conduct and efficiency ratings of “excellent” throughout his service.  Therefore he is entitled to correction of his records to show this award.

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 that the applicant participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars to be affixed to his Vietnam Service Medal.

BOARD VOTE:

___X____  ___X____  __X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the awards of the Purple Heart for wounds sustained on 12 November 1969, Army Good Conduct Medal for the period 23 January 1967 to 1 January 1970, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and four bronze service stars to be affixed to his Vietnam Service Medal.




       _    ___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)                                         AR20080003263





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ABCMR Record of Proceedings (cont)                                         AR20080003263



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