IN THE CASE OF:	  

		BOARD DATE:	       11 September 2008

		DOCKET NUMBER:  AR20080011303 


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 that he be awarded the Purple Heart; that his DD Form 214 (Report of Separation from Active Duty) for the period ending               4 September 1974 be corrected to show all his awards to include the Army Good Conduct Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), and foreign unit awards such as the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and that item 19 (Indochina or Korea Service Since August 5, 1964) on his DD Form 214 be corrected to show he served in Vietnam from 14 June 1967 to 1 June 1968.

2.  The applicant states that he was wounded in the left upper leg during a night mortar attack at Long Binh on 28 May 1968 as witnessed by Sergeant Kenneth K___.  He was rendered unconscious from the explosion and was taken to the aid station, where shrapnel was removed from his upper left leg, leaving a 3 inch by 3/4 inch scar.  During medical treatment, they discovered he had pneumonia and he was evacuated to the United States.  The Army lost his personnel and medical records.  He could not prove he was wounded until he found Sergeant K___ via the internet.

3.  The applicant states that his DD Form 214 for the period ending 4 September 1974 should be corrected to show all his awards so he may legally display his awards.  


4.  The applicant provides three applications; a letter, dated 20 April 2008, to his Member of Congress; a letter, dated 29 May 2008, from the National Personnel Records Center to his Member of Congress; a DA Form 8-275-3 (Clinical Record Cover Sheet), date of disposition 31 May 1968; a DA Form 8-275-2 (Clinical Record Cover Sheet), date of disposition 12 June 1968; his DD Form 214 for the period ending 20 April 1967; his DD Form 214 for the period ending 4 September 1974 (which appears to have been altered in items 21 (Time Lost) and                27 (Remarks); a Standard Form 180 (Request Pertaining to Military Records), dated 20 April 2008; a letter, dated 18 April 2008, from his brother, Lieutenant Colonel Charles W___, U. S. Marine Corps (Retired), to the applicant’s Member of Congress; a notarized Statement of Fact from Kenneth K___; a National Archives and Records Administration (NA) Form 13042 (Request for Information Needed to Locate Medical Records); and an NA Form 13151 (Reply to Request for Organizational Records (Medical)).

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 enlisted in the Regular Army on 20 July 1965.  On 20 April 1967, while assigned to the 64th Ordnance Company, Germany, he was honorably discharged and immediately reenlisted on 21 April 1967.  He reenlisted for the Regular Army enlistment option with a written promise that he would be assigned to Vietnam with initial assignment to the 576th Ordnance Company.

3.  The applicant’s DD Form 214 for the period ending 20 April 1967 shows       he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  Except for a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)) and one order, no documents from the applicant’s Vietnam service are available.  
5.  The Article 15, dated 30 August 1967, shows the applicant was assigned      to the 60th Ordnance Company at that time.  He received the Article 15 for absenting himself from his unit from on or about 7:30 a.m. until on or about 4:00 p.m. on 8 August 1967.  His punishment was a reduction to Private, E-2; a forfeiture of $15.00 pay; and 14 days restriction.  

6.  The applicant’s DD Form 214 for the period ending 4 September 1974 shows he served in Vietnam from 20 April 1967 through 1 April 1968.

7.  A DA Form 8-275-3 shows the applicant was admitted to the 93d Evacuation Hospital on 28 May 1968 with a diagnosis of right upper lobe pneumonitis.  

8.  Orders, dated 31 May 1968, show the applicant was to be medically evacuated to Womack Army Hospital, Fort Bragg, NC, on or about 1 June 1968.  As of 1 June 1968, he was credited with participation in three campaigns.

9.  A Fort Bragg Form 1571-R (Disposition and Clearance Record) shows the applicant was transferred from the 93d Evacuation Hospital on 4 June 1968.

10.  A DA Form 8-275-2, dated 12 June 1968, shows that the applicant was hospitalized at Womack Army Hospital for 8 days for a diagnosis of pneumonitis of the right lower lobe, organism undetermined, and that he was returned to duty, assigned to the 388th Replacement Company, Fort Bragg, that date.  This form indicated that no transfer records from the 93d Evacuation Hospital were available.

11.  In an earlier, unrelated ABCMR action, the Board erroneously noted that the applicant had been medically evacuated from Vietnam due to a non-combat related knee injury which occurred on 12 October 1968.  

12.  The applicant’s service medical treatment records restart with his treatment for his knee injury, for which he underwent surgery on 4 November 1968 to repair a torn medial meniscus of his right knee.

13.  On 13 June 1969, while on orders to report to Germany, the applicant went absent without leave (AWOL).  He was returned to military control on or about
10 July 1974.

14.  The applicant completed a separation physical examination on 15 July 1974. His Standard Form 88 (Report of Medical Treatment) shows he had a scar on the medial aspect of the right knee and a scar on the right hand.  Item 74 (Summary of Defects and Diagnoses) does not list any other physical injuries.  A Standard Form 89 (Report of Medical History) is not available.
15.  On 4 September 1974, the applicant was discharged with an undesirable discharge, characterized as under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had completed 2 years, 3 months, and 17 days of creditable service during his second enlistment with 1,853 days of lost time.

16.  The applicant’s DD Form 214 for the period ending 4 September 1974 does not show he was awarded any awards or decorations.  Item 19 shows he served in Indochina or Korea from 20 April 1967 through 1 April 1968.

17.  On 23 September 1975, the Veterans Administration (VA) [now known as the Department of Veterans Affairs] requested, via a VA Form 07-3101 (Request for Information), a request for the applicant’s service medical records to verify, in part, a shrapnel wound to his right hand and left leg in May 1968 and a .30 caliber wound to his right leg.  

18.  The applicant provided a letter, dated 18 April 2008, from his brother.  His brother stated that in May/June 1968 he was stationed at Marine Corps Air Station, Iwakuni, Japan.  He received a call from the Red Cross about 1 June 1968 informing him that the applicant had been wounded in a mortar attack and was being medically evacuated to the United States for treatment and recovery.  His brother stated, “As such, it was clear, based on the Red Cross phone call, that he was wounded by enemy fire and would receive the Purple Heart medal.”

19.  The applicant’s brother stated that he learned in 1982 that the applicant had not received the Purple Heart.  He learned that the applicant’s personnel and medical records for his period in Germany and Vietnam were missing and that the Army did not attempt to reconstruct his records.  The medical personnel at the Aid Station at Long Binh would have recorded the removal of the enemy mortar shrapnel and entered it into the applicant’s medical record.  (However), since there were numerous wounded during the attack it was also possible that no record was made.  Since the applicant was immediately medically evacuated, he had no opportunity to ensure an entry was made and likely was in no medical condition to do so anyway.  The applicant’s brother stated that he finally was put in touch with Mr. Kenneth K___.  Mr. K___ requested a picture of the applicant when he was in the Army.  He then received a letter from Mr. K___ in which Mr. K___ stated that he knew the applicant in Vietnam and witnessed his being wounded by mortar shrapnel and his subsequent medical evacuation from the mortar impact area.  



20.  The applicant provided a letter from Mr. Kenneth K___.  Mr. K___ stated that he was present in the immediate area and he personally witnessed the applicant being wounded in his legs by an enemy mortar shell during a ground/mortar and rocket attack against the northwest sector of the Long Binh Post/Ammunition Depot during the hours of darkness on the morning of 28 May 1968.  He witnessed the applicant being medically evacuated immediately afterwards.      He never saw the applicant again and he later learned that the severity of the applicant’s wounds necessitated his evacuation from the combat zone.

21.  The applicant’s name is not listed on the Vietnam Casualty Roster.  

22.  The applicant’s records contain a reconstructed DA Form 20 (Enlisted Qualification Record).  Item 40 (Wounds) does not show he was wounded.  Item 38 (Record of Assignments) does not contain any conduct and efficiency rating entries.

23.  Army Regulation 600-8-22 (Military Awards) states 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.

24.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

25.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation.  Authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal. 

26.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.  

27.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It stated 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.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in General Orders.

28.  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 60th Ordnance Company, it was cited for award of the Meritorious Unit Commendation for the period 31 October 1965 through 31 December 1967 by Department of the Army General Orders Number 48, dated 1968.

29.  Department of the Army General Orders Number 8, 1974, announced   award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U. S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters,        U. S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that item 19 of his DD Form 214 for the period ending 4 September 1974 should be corrected to show he served in Vietnam from 14 June 1967 to 1 June 1968 is accepted as valid.

2.  The applicant’s DD Form 214 for the period ending 4 September 1974 shows he served in Indochina from 20 April 1967 through 1 April 1968.  The evidence of record indicates that those dates of service were not possible.  The applicant was still in Germany when he reenlisted on 21 April 1967.  It appears he did reenlist with a promise of being assigned to Vietnam.  Allowing time to outprocess from Germany with a normal 30 days of leave in the United States makes 1 June 1967 a reasonable date of arrival in Vietnam.  In addition, evidence of record indicates the applicant was medically evacuated from Vietnam on 1 June 1968.

3.  Therefore, item 19 of the applicant’s DD Form 214 for the period ending         4 September 1974 should be corrected to show he served in Indochina from       1 June 1967 through 1 June 1968.

4.  Based upon the applicant’s assignment to the 60th Ordnance Company while in Vietnam, he is authorized to wear the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device 
(1960), the Meritorious Unit Commendation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  These service/unit awards should be added to his DD Form 214 for the period ending 4 September 1974.  

5.  Department of the Army Pamphlet 670-3 does not show that the 60th Ordnance Company was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, there is insufficient evidence on which to add this unit award to the applicant’s DD Form 214 for the period ending         4 September 1974.

6.  In addition, the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar from the applicant’s first        DD Form 214 should also be added to his last DD Form 214.

7.  The applicant requested award of the Army Good Conduct Medal.  

8.  The Army Good Conduct Medal is for each 3 years of continuous enlisted active Federal military service.  The applicant completed 3 years of continuous active Federal military service on 29 July 1968.  However, at the time a Soldier’s conduct and efficiency ratings must have been rated as “excellent” for the entire period of qualifying service.  Since the applicant’s DA Form 20 does not indicate any conduct and efficiency ratings, it cannot be determined if he met this eligibility criteria.  In addition, the applicant received an Article 15 in August 1967 for which the punishment included a reduction in rank.  

9.  Based upon the above, there is insufficient evidence to show that the applicant would have met the eligibility criteria for award of the Army Good Conduct Medal.

10.  The applicant requested award of the Purple Heart.  He provided a witness statement from Kenneth K___, who stated he was present in the immediate area and he personally witnessed the applicant being wounded in his legs by an enemy mortar shell during the hours of darkness on the morning of 28 May 1968. 

11.  The statements of individuals are normally inadequate as the sole basis for an award of the Purple Heart because they do not fulfill the regulatory requirement that there be a record of medical treatment.  In addition, there are inconsistencies between the applicant’s and Kenneth K___’s statements and the evidence of record.


12.  Mr. K___ stated that he witnessed the applicant being medically evacuated, and he later learned that the severity of the applicant’s wounds necessitated his evacuation from the combat zone.  However, the evidence of record (and the applicant’s own statement) shows he was medically evacuated not because of a severe wound but because he was found to have right upper lobe pneumonitis.

13.  The applicant stated shrapnel was removed from his upper left leg at the aid station, leaving a 3 inch by 3/4 inch scar.  However, no scar on his upper left leg was mentioned on his separation Standard Form 88.  

14.  It is acknowledged that records can get lost in the rush and confusion of medically evacuating a Soldier from a combat zone.  However, it appears that it would be unusual for a Report of Medical Examination to note a scar on the applicant’s right knee (as a result of his November 1968 knee surgery) and a scar to his right hand but fail to note a fairly large scar on his upper left leg.

15.  Regrettably, there is insufficient evidence that would warrant granting award of the Purple Heart to the applicant.

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.   amending item 19 of his DD Form 214 for the period ending 4 September 1974 to show he served in Indochina from 1 June 1967 through 1 June 1968; and

     b.  amending his DD Form 214 for the period ending 4 September 1974 to show he was awarded the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the 

Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the National Defense Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

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, the Army Good Conduct, or the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.



      ________xxxx__________
               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)                                         AR20080011303



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ABCMR Record of Proceedings (cont)                                         AR20080011303



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