IN THE CASE OF:	    

		BOARD DATE:	         21 January 2009

		DOCKET NUMBER:   AR20080012737 


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 for injuries received on 15 January 1971 while serving in the Republic of Vietnam. 

2.  The applicant states, in effect, he was never submitted for award of the Purple Heart for injuries received during combat operations in the Republic of Vietnam on 15 January 1971.

3.  The applicant provides a two-page self authored letter; two eyewitness statements; a Standard Form 88 (Report of Medical Examination); discharge orders; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 November 1967; a DD Form 214 (Report of Separation from Active Duty) for the period ending 26 November 1973; two physician's statements; a magnetic resonance imaging (MRI) report; and a Department of Veterans Affairs service connected compensation decision document 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 enlisted into the Regular Army on 13 September 1965.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant arrived in the Republic of Vietnam on 19 April 1966 and was assigned to Company A, 1st Battalion, 503rd Infantry (Airborne), 173rd Airborne Brigade.  He departed the Republic of Vietnam on 23 April 1967.  He was honorably discharged on 26 November 1967 for the purpose of immediately reenlisting on 27 November 1967.  

4.  The applicant arrived in the Republic of Vietnam for a second tour of duty on 
10 October 1970 and was assigned to Company C (Ranger), 75th Infantry Regiment (Airborne).  He departed the Republic of Vietnam on 22 June 1971.  He was honorably discharged on 26 November 1973.

5.  Block 24 (Decorations, Medals, Badges, Commendation, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 26 November 1973 shows the National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Vietnam Campaign Medal with Device (1960), Parachutist Badge, Purple Heart, Bronze Star Medal (1st Oak Leaf Cluster), Army Commendation Medal, Combat Infantryman Badge, Ranger Tab, three Overseas Service Bars, Expert Marksmanship Qualification Badge with Rifle Bar M-14, and the Bronze Star Medal with "V" Device as authorized awards.

6.  The Republic of Vietnam Casualty Roster does not show he was wounded on 15 January 1971.  However, this roster shows he was wounded as a result of hostile action on 21 May 1966.

7.  Headquarters 173d Airborne Brigade General Orders Number 67, dated 
26 June 1966, awarded the applicant the Purple Heart for wounds received as a result of hostile action on 21 May 1966.  

8.  Block 40 of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was wounded on 21 May 1966 and on 2 March 1967.  This form does not show he was wounded on 15 January 1971. 

9.  The applicant provided a two-page self authored letter which essentially states that on or about 15 January 1971, while being evacuated by helicopter from a fire fight, he was dragged through the tree tops for 10 to 20 seconds at speeds of approximately 100 miles an hour while the North Vietnamese Army (NVA) continued to fire at him and the aircraft.  He continues that he was flown to a field hospital and treated for cuts, bruises, sprains and severe trauma to his legs and lower back.  He contends that he was told by the attending physician he had a fractured vertebra in his lower back and concludes that the injuries received while under fire from the NVA qualify for award of the Purple Heart.

10.  The applicant provided two eyewitness statements which essentially corroborate the applicant's explanation of the events.

11.  The medical documentation provided by the applicant indicates he has been treated for lower back pain.

12.  A Department of Veterans Affairs rating decision shows he is being evaluated for post-traumatic stress disorder and that compensation for a compression fracture L1 and L2 with herniated disc was denied.

13.  The applicant's DA Form 20 shows his conduct and efficiency ratings of "excellent" throughout his periods of service and his records contain no derogatory information. 

14.  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.  When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.  The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

15.  Army Regulation 600-200, chapter 9 of the regulation in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

16.  Review of the applicant's records indicates entitlement to additional awards that are not shown on his DD Form 214.
17.  Army Regulation 672-5-1 (Military Awards), 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.  A clasp is authorized for wear on the Army Good Conduct Medal to denote a second or subsequent awards.

18.  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 1st Battalion, 503rd Infantry, it was cited for award of the Meritorious Unit Commendation for the period 5 May 1965 through 4 May 1967 by Department of the Army General Orders (DAGO) Number 48, dated 1968.

19.  Department of the Army Pamphlet 672-3 also shows that at the time of the applicant's assignment to Company C, 75th Infantry (Rangers), the unit was cited for award of the Republic of Vietnam Civic Actions Honor Medal First Class for the period 15 April 1969 through 16 March 1971 by Department of the Army General Orders (DAGO) Number 5, dated 1973.

20.  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 contention that he should be awarded the Purple Heart for injuries received on 15 January 1971 were carefully considered and found to be without merit.

2.  Although the applicant contends he was wounded on 15 January 1971, there is no evidence in the available records which shows he was wounded as a result of hostile action on that date.  The eyewitness statements provided by the applicant were carefully considered.  Unfortunately, statements prepared over 
30 years after the fact without corroborating evidence are insufficient for award of the Purple Heart for this date.  In the absence of any other evidence which shows the applicant was wounded or treated for wounds as a result of hostile action on 15 January 1971, and the degree to which the enemy caused the injury, there is insufficient evidence on which to base award of the Purple Heart in this case.

3.  General Orders show the applicant was awarded the Purple Heart for wounds sustained as a result of hostile action on 21 May 1966.  

4.  Block 40 of his DA Form 20 shows he also sustained a gunshot wound to his right side on 2 March 1967.  Based on the fact that entries in block 40 are for wounds sustained as a result of hostile action and treatment was administered, the applicant is entitled to award of the Purple Heart for wounds sustained on 
2 March 1967 in the Republic of Vietnam.

5.  The applicant was separated in the rank of staff sergeant with a total of 
8 years, 2 months, and 14 days of creditable active service with no time lost and conduct and efficiency ratings of "excellent" throughout his periods of service.  Therefore, it appears the applicant met the eligibility criteria for award of the Army Good Conduct Medal (1st Award) for the period 13 September 1965 through 12 September 1968 and award of the Army Good Conduct Medal 
(2nd Award) for the period 13 September 1968 through 12 September 1971.

6.  General Orders show the applicant was assigned to a unit which was awarded the Meritorious Unit Commendation.  Therefore, he is entitled to have his records corrected to show this unit award.

7.  General Orders also show the applicant was assigned to a unit which was awarded the Republic of Vietnam Civic Actions Honor Medal First Class.  Therefore, he is entitled to have his records corrected to show this unit award.

8.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  The applicant served in Vietnam during a qualifying period and is eligible for this award.

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.  awarding him the Purple Heart (1st Oak Leaf Cluster) for wounds sustained on 2 March 1967;
   
      b.  awarding him the first award of the Army Good Conduct Medal  for the period 13 September 1965 through 12 September 1968 and the second award of the Army Good Conduct Medal for the period 13 September 1968 through         12 September 1971;
   
   c.  deleting the Purple Heart from his DD Form 214; and 
   
   d.  adding the Purple Heart (1st Oak Leaf Cluster), the Good Conduct Medal (2nd Award), the Meritorious Unit Commendation, the Republic of Vietnam Civic Actions Honor Medal First Class Unit Citation, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation 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 award of the Purple Heart for injuries sustained on 15 January 1971.  




      _______ _   _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)                                         AR20080012737





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ABCMR Record of Proceedings (cont)                                         AR20080012737



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