IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080004314 


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 award of the Purple Heart.

2.  The applicant states that he was shot in March 1969 in the line of duty and was told the paperwork would be submitted to award him the Purple Heart.

3.  The applicant provides a self-authored letter, dated 19 February 2008, and a copy of A physician evaluation statement, dated 6 February 2008, 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 was inducted into the Army of the United States on 23 October 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was honorably discharged and transferred to the U.S. Army Reserve Control Group (Annual Training) on 2 June 1969.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s record shows he served in the Republic of Vietnam from 20 March 1968 to 20 May 1969.  He was assigned to Company A, 1st Engineer Battalion, 1st Infantry Division. 

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Republic of Vietnam Campaign Medal.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.

6.  The applicant's name is not shown on the Vietnam Casualty Roster. 

7.  The applicant's medical records are not available for review with this case.

8.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

9.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

10.  In his self-authored statement dated 19 February 2008, the applicant states that he was shot in the upper left hip area in March 1969 at An Lock, Republic of Vietnam, and that it took several hours to remove the bullet.  The only thing he remembers is that his sergeant told him the paperwork would be submitted to award him the Purple Heart.  He was subsequently evacuated from the Republic of Vietnam to Lackland Air Force Base (AFB), Texas.  At Lackland (AFB), no one debriefed him or told him how to submit the paperwork.  He has since been diagnosed with Agent Orange acne, a heart skip that he did not have prior to serving in the Republic of Vietnam, and has had heart surgery.  The surgeons attributed his medical situation to chemicals.  He concludes that he also has a severe case of Post Traumatic Stress Disorder (PTSD) and that he should be entitled to the Purple Heart for his injury in Vietnam.

11.  In a statement, dated 6 February 2008, the applicant's supervising physician states that the applicant was exposed to Agent Orange during his service in Vietnam and that the applicant's acne is attributed to that exposure.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

13.  Review of the applicant's records indicates his entitlement to additional awards that are not shown on his DD Form 214.

14.  A review of the applicant's service record shows no derogatory information that would disqualify him for the first award of the Good Conduct Medal.  Furthermore, Item 38 (Record of Assignment) of the applicant's DA Form 20 shows his conduct and efficiency ratings were "Excellent" during his military service.

15.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified period of active duty enlisted service.  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.  The enlisted person must have had all “Excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that the 1st Engineer Battalion was awarded the Meritorious Unit Commendation, during the period 3 June 1968 to 5 June 1969, based on Department of the Army General Orders Number 50, dated 1971; the Republic of Vietnam Gallantry Cross with Palm Unit Citation, during the period 12 July 1965 to 16 October 1968, based on Department of the Army General Orders Number 21, dated 1969; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, during the period 1 October 1965 to 7 April 1970, based on Department of the Army General Orders Number 53, dated 1970.

17.  Item 24 of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

18.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the TET Counteroffensive, the Vietnam Counteroffensive, Phases IV, V, and VI, and the TET 69 Counteroffensive campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star (or a silver service star in lieu of five bronze service stars) will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

19.  Headquarters, U.S. Army Training Center, Fort Bragg, North Carolina, Special Orders Number 333, dated 29 November 1967, show that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

20.   Headquarters, U.S. Army Training Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, Special Orders Number 57, dated 26 February 1968, show that the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

21.  Based on the 23 June 1989 memorandum from the Office of the Deputy Chief of Staff for Personnel, Agent Orange was only employed by United States Forces in Vietnam and not by the enemy.  Therefore, its use cannot be construed as a hostile action on the part of the enemy and exposure to Agent Orange cannot be considered as a basis for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart. 

2.  There are no general orders that show the applicant was awarded the Purple Heart; there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds; and the applicant's name is not listed on the Vietnam Casualty Roster.  In the 
absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  General Orders show the applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Meritorious Unit Commendation, which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards.

4.  Evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, record shows the applicant participated in five campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of one silver service star to be affixed to his already-awarded Vietnam Service Medal.

5.  Evidence of record confirms that the applicant served honorably during the period 23 October 1967 to 2 June 1969.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant his first award of the Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his record to show this award.

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 the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 23 October 1967 to 2 June 1969; and




	b.  showing award of the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Meritorious Unit Commendation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and one silver service star 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 award of the Purple Heart.



							XXX
       _   _______   ___
       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)                                         AR20080004314



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ABCMR Record of Proceedings (cont)                                         AR20080004314



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