IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080005254 


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 two awards of the Purple Heart (correctly known as the Purple Heart with First Oak Leaf Cluster).  

2.  The applicant states that he was shot twice during his duty in Vietnam.

3.  The applicant provides no additional 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 was inducted on 11 June 1969.  He was promoted to sergeant, E-5 on 4 February 1970.

3.  The applicant’s records contain a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)) that shows he accepted non-judicial punishment under Article 15, UCMJ on 14 April 1970 for disobeying a lawful order from his superior noncommissioned officer and for being disrespectful in language towards his superior noncommissioned officer.

4.  The imposed punishment was a reduction in one grade and a forfeiture of $50.00 pay per month for two months.  There is no record of the reduction being executed.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) does not show he was reduced.  There are no reduction orders in his records.  His DD Form 214 (Armed Forces of the United Stats Report of Transfer or Discharge) shows his rank as sergeant with his original date of rank.

5.  The applicant arrived in Vietnam on 31 May 1970.  He served as an armor reconnaissance specialist assigned to Company E, 1st Battalion, 6th Infantry of the 198th Infantry Brigade in Vietnam from 25 June 1970 until he was hospitalized on 27 November 1970 and evacuated to the States on 14 December 1970.  On 5 February 1971, he was released from active duty in the rank of sergeant after completing 1 year, 7 months, and 25 days of creditable active service with no time lost.

6.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960) as authorized awards.  His DD Form 214 shows that he was separated on temporary records and the Soldier’s own affidavit.

7.  There are no orders for the Purple Heart in the available records.  However, a Standard Form 88 (Report of Medical Examination), dated 29 January 1971, shows the applicant sustained a gunshot wound to his right foot apparently as a result of hostile fire.  

8.  Item 40 (Wounds) on a DA Form 20 (Enlisted Qualification Record), audited by the applicant on 3 February 1971, shows he sustained a gunshot wound to his right foot on 27 November 1970.        

9.  There is no evidence of record which shows the applicant was wounded a second time as a result of hostile action in Vietnam.

10.  The applicant's name does not appear on the Vietnam Casualty Roster.

11.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His records show he received conduct and efficiency ratings of “excellent” throughout his service.

12.  Records show the applicant participated in two campaigns during his assignment in Vietnam.

13.  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 the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 42, dated 1972.

14.  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 medical personnel, 
and the medical treatment must have been made a matter of official record.  The bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

15.  Army Regulation 672-5-1, in effect at the time, 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 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in General Orders.

16.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  

DISCUSSION AND CONCLUSIONS:

1.  The entry on the applicant’s Standard Form 88 which shows he sustained a gunshot wound to his right foot as a result of hostile action and the entry on the applicant’s DA Form 20 which shows he was wounded on 27 November 1970 are accepted as sufficient evidence on which to base one award of the Purple Heart.  There is no evidence of record which shows that he was wounded as a result of hostile action on any other date.  Therefore, his DD Form 214 should be corrected to show one award of the Purple Heart.

2.  The applicant was separated in the rank of sergeant with almost 20 months of creditable active service with no time lost.  Although he did receive an Article    15 whose punishment included a reduction, it appears that reduction was never executed, possibly because the applicant was so close to departing for Vietnam. In any case, he received conduct and efficiency ratings of “excellent” throughout his service, even for the period he received the Article 15.  It appears the applicant met the eligibility criteria for the first award of the Good Conduct Medal for the period 11 June 1969 through 5 February 1971 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his records should be corrected to show this award.

3.  The applicant participated in two campaigns during his assignment in Vietnam which makes him eligible for award of the Vietnam Service Medal with two bronze service stars.

4.  The applicant’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ___xx___  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 Purple Heart for wounds received in action on 
27 November 1970 in Vietnam;  

	b.  awarding him the first award of the Good Conduct Medal for the period 11 June 1969 through 5 February 1971; and  

	c.  adding the Purple Heart, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars for wear on his already-awarded Vietnam Service Medal to his DD Form 214. 

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 a second award of the Purple Heart.




	_______xxxxx___________
      	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)                                         AR20080005254



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ABCMR Record of Proceedings (cont)                                         AR20080005254



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