IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080003696 


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, he was wounded in action in the Republic of Vietnam (RVN); however, the PH was omitted from the list of awards contained on his separation document (DD Form 214).   

3.  The applicant provides no documentary evidence 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 he enlisted in the Regular Army and entered active duty on 31 January 1970.  He was trained in and awarded military occupational specialty (MOS) 11B (light weapons infantryman), and
specialist four (SP4) is the highest rank he attained while serving on active duty. 

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 17 August 1970 through 24 May 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 5th Battalion, 46th Infantry Regiment, performing duties in MOS 11B as an assistant machine gunner.  

4.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB); Army Commendation Medal (ARCOM); Air Medal (AM); and RVN Campaign Medal with Device (1960).  

5.  A Report of Medical History (SF 89), dated 15 November 1971, that was prepared on the applicant during his separation processing, contains an entry that indicates he had fragmentation removed from wounds received in the RVN from his chest, buttocks, and right arm.

6.  The applicant's record contains Headquarters, United States Army Combat Developments Command, Fort Ord, California, General Orders Number 308, dated 3 November 1971, which awarded the applicant the first award of the Army Good Conduct Medal (AGCM), for his qualifying period of honorable active duty service from 30 January 1970 to 30 November 1971.  

7.  On 30 November 1971, the applicant was honorably released from active duty (REFRAD), in the rank of SP4, after completing 1 year, 10 months, and 1 day of active military service.  The separation document (DD Form 214) he was issued at the time does not include the PH and/or the AGCM in the list of awards contained in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).    

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This roster contained an entry that confirms the applicant was wounded in action in the RVN on 
11 January 1971.


9.  Army Regulation 600-8-22 (Military Awards) contains 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 an award of the PH, there must be evidence that a member was wounded or injured as a result of enemy action; that the wound or injury for which the award is being made required treatment by medical personnel; and this treatment must be supported by medical treatment records that were made a matter of official record.  

10.  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 contains a list of RVN campaigns.  It shows that during the applicant's tenure of assignment, participation credit was granted for the Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VII, and Consolidation I campaigns.  

11.  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 (5th Battalion, 46th Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in action in the RVN and as a result should have been awarded the PH was carefully considered and found to have merit.  By regulation, in order to support award of the PH, there must be evidence that wound for which the award is being made was received as a result of enemy action, and that it required treatment by military medical personnel.  

2.  The evidence of record includes an SF 89 that contains an entry showing the applicant had fragmentation removed from his chest, buttocks, and right arm, which were received as a result of being wounded in the RVN.  Further, the DA Vietnam Casualty Roster contains an entry pertaining to the applicant that confirms he was wounded in action in the RVN on 11 January 1971.  As a result, it would be appropriate to award the applicant the PH, and to add this award to his record and separation document at this time.  


3.  The applicant's record also contains orders that awarded the applicant the AGCM for his qualifying honorable active duty service from 31 January 1970 through 30 November 1971; however, this award was not included in the list of awards contained in Item 24 of the applicant's DD Form 214.  Therefore, it would also be appropriate to add this award to his record and separation document at this time.  

4.  The evidence of record also shows that based on his RVN service and campaign participation, he is entitled to the RVN Gallantry Cross with Palm Unit Citation and 3 bronze service stars with his VSM.  As a result, these awards should also be added to his record and separation document.  

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 awarding him the Purple Heart, for being wounded in action in the Republic of Vietnam on 11 January 1971; by showing his entitlement to the Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 3 bronze service stars for wear on his already-awarded 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)                                         AR20080003696



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ABCMR Record of Proceedings (cont)                                         AR20080003696


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