IN THE CASE OF:	  

		BOARD DATE:	        23 OCTOBER 2008

		DOCKET NUMBER:  AR20080014126 


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

2.  The applicant states that he was shot in the arm in battle in Vietnam and should have been awarded the Purple Heart. 

3.  The applicant provides a copy of his DD Form 214 and a copy of his Physical Evaluation Board (PEB) proceedings. 

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 was inducted at Fort Jackson, South Carolina on 27 June 1968. He completed his training at Fort Jackson and was transferred to Vietnam on 21 November 1968, for assignment to Company D, 4th Battalion, 39th Infantry Regiment, 9th Infantry Division as a light weapons infantryman (11B).

3.  On 20 December 1968, while serving in the rank of private first class (PFC), the applicant was wounded by sniper fire in the right elbow while in the process of securing a bridge.  He was initially treated at the 3rd Surgical Hospital in Don Tam and on 20 December 1968, he was medically evacuated to the 106th General Hospital in Japan, where he remained until 17 January 1969, when he was transferred to Fort Gordon, Georgia.

4.  On 25 July 1969, a PEB convened at Fort Gordon and determined that he should be placed on the Temporary Disability Retired List (TDRL) with a 50% disability rating.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

5.  On 15 August 1969, the applicant was honorably released from active duty (REFRAD) and was placed on the TDRL.  He had served 1 year, 1 month and 19 days of total active service.  His DD Form 214 issued at the time of his REFRAD shows that the applicant was awarded the National Defense Service Medal, the Sharpshooter Marksmanship Badge with Rifle bar and the Vietnam Service Medal (VSM) with one bronze service star.

6.  On 31 March 1972, he was permanently retired by reason of physical disability with a 50% disability rating. 

7.  A review of the available records fails to show any indication that the applicant was awarded the Purple Heart or any additional awards.  Additionally, his records show that he had excellent conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the Good Conduct Medal (GCMDL).

8.  Army Regulation 600-8-22 (Military Awards) 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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Combat Infantryman Badge is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty (MOS).  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  The Awards Branch of the U.S. Army Human Resources Command (formerly known as the Total Army Personnel Command) has advised, in similar cases, that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H. 

10.  Army Regulation 600-8-22 (Military Awards) provides that the Good Conduct Medal (AGCM) is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal (RVNCM).  This medal 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.  Qualifying service outside the geographical limits of the Republic of Vietnam required the individual to provide direct combat support to the Republic of Vietnam and Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were evacuated prior to completing six months of service due to wounds resulting from hostile action were entitled to award of the Republic of Vietnam Campaign Medal.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the pamphlet indicates that the applicant’s unit was subsequently awarded the  Republic of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation and the Republic of Vietnam Civil Actions Honor Medal – First Class (RVNCAHM-FC) Unit Citation during the period he was assigned to the unit.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the Purple Heart has been noted and found to have merit.  He was wounded in action in Vietnam on 20 December 1968, while serving as a light weapons infantryman in the rank of PFC and was subsequently retired by reason of permanent physical disability as a result of that wound.  Accordingly, he is entitled to be awarded the Purple Heart for that wound.   
2.  Inasmuch as the applicant was serving as an infantryman in an infantry unit when he was wounded as a result of hostile action, he is also entitled to be awarded the Combat Infantryman Badge, effective 20 December 1968.

3.  After carefully examining the applicant’s record of service, it was determined that the applicant should have received the AGCM for his service from 27 June 1968 through 15 August 1969.  This conclusion is based on the fact 
that the record is void of any derogatory information which would preclude the applicant from being awarded the AGCM and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving the award.  

4.  The applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served.  Therefore, in the interest of justice, this error should be corrected and the applicant should receive the AGCM at this time.

5.  Additionally, the evidence of record shows that the applicant is entitled to awards of the RVNCM, the RVNGC w/Palm Unit Citation, the RVNCAHM-FC Unit Citation.
  
BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 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 for wounds received in action in Vietnam on 20 December 1968, while serving in the rank of PFC.

     b.  awarding him the CIB effective 20 December 1968 and the AGCM for the period of 27 June 1968 through 15 August 1969; and
     c.  awarding him the RVNCM, the RVNGC w/Palm Unit Citation, and the RVNCAHM-FC Unit Citation.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation during the Vietnam War.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20080014126



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ABCMR Record of Proceedings (cont)                                         AR20080014126



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