IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080011097 


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, in two applications, requests that he be awarded the Purple Heart and that his military records be corrected to show the award of the Combat Infantryman Badge. 

2.  The applicant states, in effect, that he received perforated ear drums due to an artillery rocket or mortar round.  The injury occurred in Vietnam as a result of hostile action.  He also states that he was medically evacuated and he was asked if he wanted the Purple Heart and he declined the award.  He did not realize the future implications of his decision.  Further, he states that he hopes the award of the Purple Heart will allow him to obtain a small scholarship for his daughter to help with college expenses.  He believes he declined award of the Purple Heart because of the cultural climate.  Protests and anti-war sentiment infused him and many others during that period of time.  He got out of the military after serving 3 years.  However, his attitude changed and he rejoined and retired after serving 27 years.  

3.  The applicant also states, in effect, that he believes his “Great Lakes Naval Hospital Discharge and Patient Disposition Form, dated 12Aug69” is in error by indicating his injury resulted from noncombat.  Additionally, he states that in any case, based on paragraph 2-8b of Army Regulation 600-8-22 (Military Awards), he believes he qualifies for the Purple Heart due to enemy action or friendly fire.  Further, he states that as shown by orders, dated 6 May 1969, he was awarded the Combat Infantryman Badge, but that at the time of his discharge, he was mistakenly under the impression that he might be brought back into the Army as an Infantryman, as the Vietnam War was still at the height of its intensity.  He also states that he thought he could preclude this by withdrawing the orders for the Combat Infantryman Badge and not having it entered on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 15 January 1971.  He further states that he destroyed his copy of his Combat Infantryman Badge orders, but that he was able to recover a copy from the National Personnel Records Center in St. Louis, Missouri in an attempt to be awarded the Purple Heart.

4.  The applicant provides a one-page undated and unsigned addendum to his application for the award of the Purple Heart; a three-page undated and unsigned addendum to his application for award of the Purple Heart; a continuation sheet to his application requesting that the Combat Infantryman Badge be added to his military records; five pages of unit historical information for the 2nd Battalion (Airmobile) 502nd Infantry Regiment; his DA Form 20 (Enlisted Qualification Record); orders, dated 6 May 1969, which appear to have awarded him the Combat Infantryman Badge; a VA Form 07-3101 (Veterans Administration Request for Information), dated 26 March 1971; a Standard Form 513 (Clinical Record – Consultation Sheet), with a date of request of 19 June 1969; results of an audiogram, dated 21 June 1969; a Standard Form 88 (Report of Medical Examination), dated 20 October 1970; a DD Form 602 (Patient Evacuation Tag), which appears to be dated 22 June 1969; a document which appears to be the reverse side of the DD Form 602; an unknown medical form, dated 12 August 1969; a Standard Form 502 (Clinical Record – Narrative Summary) with a date of admission of 26 June 1969; orders, dated 12 May 1969, which awarded him the Bronze Star Medal; and orders, dated 9 March 1998, which released him from active duty on 31 July 1998 and placed him on the retired list on 1 August 1998 in support of this 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 military records show that he enlisted in the Regular Army on 25 January 1968.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 71H (Personnel Specialist).  After completing airborne training at Fort Benning, Georgia, he departed for the Republic of Vietnam on 25 July 1968, and he was initially assigned to the 101st Administration Company.  On 11 March 1969, he was reassigned to Headquarters and Headquarters Company, 2nd Battalion, 502nd Infantry Regiment.  On 24 April 1969, he was reassigned to Company B, 2nd Battalion, 502nd Infantry Regiment.  He returned to the continental United States on 7 July 1969 and was assigned as a patient at the United States Naval Hospital, Great Lakes, Illinois.  He was reassigned to Fort Sheridan, Illinois on 13 August 1969; however, on 3 December 1969, he departed for a tour in Germany.  He returned to the continental United States, on or about 14 January 1971, and was honorably released from active duty on 15 January 1971.  The DD Form 214 that he was issued at the time of his release from active duty shows he was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the basic Parachutist Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  

3.  On 28 March 1974, he again enlisted in the Regular Army, and remained on continuous active duty until he retired on 31 July 1998 in the rank of command sergeant major after completing more than 27 years of total active duty service.  The DD Form 214 issued to him at the time of his retirement, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, essentially shows that he was awarded the Legion of Merit, the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal with Fourth Oak Leaf Cluster, the Army Achievement Medal with First Oak Leaf Cluster, the Army Good Conduct Medal (9th Award), the National Defense Service Medal with one bronze service star, the “Vietnam Service Medal 
(4th Award),” the “Republic of Vietnam Campaign Medal,” the Noncommissioned Officer Professional Development Ribbon with Numeral 4, the Army Service Ribbon, the Overseas Service Ribbon (4th Award), the “Republic of Vietnam Gallantry Cross with Palm Unit Citation with Device (1960),” the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the basic Parachutist Badge, the Aircraft Crewman Badge, the Air Assault Badge, the German Armed Forces Proficiency Badge in Gold, and two overseas service bars.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military personnel records which show that he was wounded or injured as a result of hostile action.

5.  The applicant provided medical documents which essentially show that he was treated for bilateral perforated ear drums on 19 June 1969.  However, none of this evidence shows that his perforated ear drums were the result of hostile action.  His DD Form 602 essentially shows that his perforated ear drums were an injury, and he was not classified as a battle casualty.  A medical document, dated 12 August 1969, also shows that the applicant's injury was due to a non-combat related incident involving artillery fire.  

6.  The applicant's military records do not show that he was awarded the Combat Infantryman Badge.  However, the applicant provided properly constituted orders, dated 6 May 1969, which essentially show that he was awarded the Combat Infantryman Badge while serving in his secondary MOS 11B (Light Weapons Infantryman) with Company B, 2nd Battalion (Airmobile), 502nd Infantry Regiment. 

7.  During a review of the applicant’s records, it was determined that he is entitled to an additional award that is not shown in his military records, and that his
DD Form 214 requires correction of some award entries.

8.  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 that at the time of the applicant’s assignment to the 101st Administration Company, the company was cited for award of the Meritorious Unit Commendation by Department of the Army General Orders Number 39, dated 1970.  

9.  The applicant's DD Form 214 essentially shows that he was awarded the Vietnam Service Medal (4th Award).  However, Army Regulation 600-8-22 provides, in pertinent part, that no person will be entitled to more than one award of the Vietnam Service Medal.  It is clear that the intent was to show that he was awarded the Vietnam Service Medal with four bronze service stars, as during the applicant's tour in Vietnam he participated in Vietnam Counteroffensive Phase V campaign, the Vietnam Counteroffensive Phase VI campaign, the Tet 69 Counteroffensive campaign, and the Vietnam Summer-Fall 1969 campaign.  Paragraph 2-13 of Army Regulation 600-8-22 provides, in pertinent part, that a bronze service star is authorized to be worn with the Vietnam Service Medal for each Vietnam campaign a member is credited with participating in.

10.  The applicant's DD Form 214 also shows that he was awarded the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation with Device (1960).  However, it should have shown that he was awarded the Republic of Vietnam Campaign Medal with Device (1960) and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

11.  Army Regulation 600-8-22 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

12.  Paragraph 2-8b of this same regulation provides the Purple Heart is awarded to members killed or wounded by friendly fire.  However, paragraph 2-8f states 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 proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for the award.  Paragraph 2-8h also provides, in pertinent part, that examples of injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive (emphasis added), aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart and that his military records should be corrected to show the award of the Combat Infantryman Badge. 

2.  The evidence provided by the applicant with his request for award of the Purple Heart was carefully considered.  However, In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  The evidence of record clearly shows that the applicant suffered perforated ear drums while serving in Vietnam; however, there is no evidence in his military records which shows that his perforated ear drums were the result of hostile action.  Additionally, the applicant provided a DD Form 602 which shows that his perforated ear drums were not classified as a battle casualty.  A second medical document dated 12 August 1969 also shows that the applicant's injury was due to a non-combat related incident involving artillery fire.  Additionally, there is no entry for the applicant on the Vietnam Casualty Roster.  

4.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries that were sustained as a result of hostile action, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award him the Purple Heart in this case.

5.  Special orders awarded the applicant the Combat Infantryman Badge, but it is not listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Combat Infantryman Badge.

6.  General orders awarded the Meritorious Unit Commendation to the 101st Administration Company while the applicant was assigned to this company.  Therefore, he is entitled to award of the Meritorious Unit Commendation and correction of his military records to show this unit award.

7.  The applicant's DD Form 214 incorrectly shows that he was awarded the Vietnam Service Medal (4th Award) instead of the Vietnam Service Medal with four bronze service stars.  Therefore, he is entitled to correction of his military records to show the award of the Vietnam Service Medal with four bronze service stars, and the removal of the entry on his DD Form 214 for the Vietnam Service Medal (4th Award).

8.  The applicant's DD Form 214 also incorrectly shows that he was awarded the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation with 1960 Device, when it should have shown that he was awarded the Republic of Vietnam Campaign Medal with 1960 Device and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to correction of his military records to show the award of the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the removal of the incorrect entries on his DD Form 214 for the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation with Device (1960).  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X______  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.  showing the award of the Combat Infantryman Badge;

	b.  awarding him the Meritorious Unit Commendation;

	c.  showing the award of the Vietnam Service Medal with four bronze service stars, and deleting the entry on his DD Form 214 that shows the Vietnam Service Medal (4th Award); and

	d.  showing the award of the Republic of Vietnam Campaign Medal with Device (1960) and the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and removing the entries on his DD Form 214 for the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation with Device (1960).  
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 awarding him the Purple Heart. 

3.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during the Vietnam War, and throughout his military career.  The applicant and all Americans should be justifiably proud of his honorable service in arms.  




      _______ _ 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)                                         AR20080011097



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ABCMR Record of Proceedings (cont)                                         AR20080011097



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