IN THE CASE OF:	  

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080011505 


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, award of the Purple Heart (PH). 

2.  The applicant states, in effect, while serving in the Republic of Vietnam (RVN) in 1967, he was walking guard patrol when he was hit with a spring loaded booby trap. He claims that it took the physician along with two officers to hold him down and remove the needle from his leg.  He claims that because they were short handed he was bandaged up and sent back to guard patrol.  However, his captain informed him that he would be taken care of later.  He further states that he was never awarded the PH for the injury he sustained to his leg and now requests that he be awarded the PH and that his separation document be corrected to reflect this award.  

3.  The applicant provides the following documents in support of his application:  Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293); Separation Document (DD Form 214); Republic of Vietnam (RVN) Certificate of Service; and Appreciation Certificate.


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 he was inducted into the Army of the United States and entered active duty on 28 September 1966, and was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 10 March 1967 through 9 March 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company C and Company D, 1st Battalion, 2nd Infantry Division, performing duties in MOS 11B (light weapons infantryman), as a rifleman, grenadier, team leader, and forward observer.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  

4.  The applicant's Official Military Personnel File (OMPF) contains a Report of Medical History (SF 89), dated 5 August 1968.  This document states in item 30 (Physician's Summary and Elaboration of All Pertinent Data) that the applicant had been hit in his left lower leg by a "booby trap splinter" and that he had slight tenderness in his left tibia area.

5.   The applicant's OMPF also contains orders that confirm he qualified as a marksman with the M-14 rifle and M-60 machinegun and he was awarded the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars.  

6.  On 27 September 1968, the applicant was honorably released from active duty (REFRAD) after completing 2 years of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Bronze Star Medal with "V" (Valor) Device; Combat Infantryman Badge; Army Good Conduct Medal; Vietnam Service Medal; RVN Campaign Medal; and 2 Overseas Service Bars.  

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. The awards regulation defines a wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, the wound required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  The regulation contains examples of wounds or injuries which clearly justify award of the PH.  Included in these examples are injuries caused by enemy placed mine or trap.

8.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment, participation credit was granted for the Vietnam Counteroffensive Phase III and TET Counteroffensive campaigns.

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his units (1st Battalion, 2nd Infantry Regiment) received the RVN Civil Actions Honor Medal First Class Unit Citation and RVN Gallantry Cross with Palm Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to award of the PH was carefully considered and found to have merit.  The evidence of record contains a SF 89 with a physician's annotation confirming the applicant sustained an injury to his left lower leg as a result of an enemy placed booby trap in the RVN.  Therefore, given this medical documents confirm the applicant was wounded as a result of enemy action (enemy placed trap), it would be appropriate to award him the PH and to add it to his record and separation document at this time.  


2.  The evidence of record also shows the applicant earned the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars; and that based on his RVN service and campaign participation, he is entitled to the RVN Civil Actions Honor Medal First Class Unit Citation; RVN Gallantry Cross with Palm Unit Citation; and 2 bronze service stars to be worn with his VSM.  Therefore, it would also be appropriate to add these awards to his record and separation document at this time.  

BOARD VOTE:

____x___  ___x____  ___x____  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: 
awarding him the Purple Heart, for being wounded in action in the Republic of Vietnam; by showing his entitlement to the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; Republic of Vietnam Gallantry Cross with Palm Unit Citation; 2 bronze service stars to be worn with his Vietnam Service Medal, and the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars; and by providing him a correction to his separation document that includes these awards.  




      _______ x_   _______   ___
               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)                                         AR20080011505



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ABCMR Record of Proceedings (cont)                                         AR20080011505


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