IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010126 


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, correction of his records to show award of the Purple Heart.

2.  The applicant states, in effect, that he sustained wounds in combat in the Republic of Vietnam and that he is authorized award of the Purple Heart, but it is not shown in his records. 

3.  The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 July 1971; and a copy of a Department of the Army Telegram, dated 30 April 1970, 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 records show that he was inducted into the Army of the United States on 17 July 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 16 July 1971.  The highest rank he attained during his military service was specialist four (SP4)/E-4.  

3.  The applicant’s records show he served in the Republic of Vietnam during the period 19 December 1969 to 20 November 1970.  He was assigned to Battery D, 2nd Battalion, 320th Artillery. 

4.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Army Commendation Medal, the Bronze Star Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Expert Marksmanship Qualification Badges with Rifle Bars (M-14 and M-16), and two Overseas Service Bars.  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 the entry “Frag Wound To Head & Finger 28 APR 70,” indicating that the applicant suffered a fragment wound to his head and finger on 28 April 1970.

6.  The applicant's name is shown on the Vietnam Casualty Roster under code "23" indicating he was wounded in action and that his wounds were not serious, but required hospitalization.

7.  The applicant's records contain a Department of the Army message, dated 29 April 1970, stating that the applicant was slightly wounded by a fragment to his left hand during a hostile mortar attack on 28 April 1970 in the Republic of Vietnam.    

8.  The applicant's records also contain a Western Union Telegram, dated 29 April 1970, informing the applicant's parents that he was slightly wounded in action in the Republic of Vietnam on 28 April 1970 by a fragment while at an artillery firing position when the area came under mortar attack by a hostile force. He received a wound to his left hand. 




9.  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, 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.

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

11.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

12.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Winter-Spring 1970, the DA Sanctuary Counteroffensive, and the Vietnam Counteroffensive, Phase VII, campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

13.  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 Assignments) of the applicant’s DA Form 20 shows he received an “Excellent” conduct and efficiency rating during his military service. 

14.  Army Regulation 672-5-1, 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.






DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows the applicant sustained a fragment wound to his hand on 28 April 1970, in the Republic of Vietnam, while at an artillery firing position when the area came under mortar attack by a hostile force; that he was treated by military medical personnel; and that his treatment was made a matter of official record.  The applicant’s name also appears on the Vietnam Casualty Roster as being wounded as a result of hostile action on 28 April 1970.  Therefore, there is sufficient evidence to show he is entitled to award of the Purple Heart and correction of his records to show this award.

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

4.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in the Republic of Vietnam; therefore, he is entitled to award of three bronze service stars to be affixed to the Vietnam Service Medal.

5.  Evidence of record confirms that the applicant served honorably during the period 17 July 1969 to 16 July 1971.  He received “Excellent” conduct and efficiency ratings throughout his military service and there is no derogatory information in his record that would have disqualified him for award of the Good Conduct Medal.  Therefore, he is entitled to correction of his records to show this award based on completion of a qualifying period of Federal military service.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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:

	a.  awarding the applicant the Purple Heart for wounds received in action on 28 April 1970 in the Republic of Vietnam;

	b.  awarding the applicant the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 17 July 1969 to 
16 July 1971; and

	c.  showing award of the Purple Heart, the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal-First Class Unit Citation, and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.





      ___        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)                                         AR20080010126



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ABCMR Record of Proceedings (cont)                                         AR20080010126



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