IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080014638 


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 correction of his DD Form 214 (Report of Transfer or Discharge) to show award of the Purple Heart, the Air Medal, and the Army Commendation Medal.

2.  The applicant states, in effect, that he never received the Purple Heart for being wounded in action in early 1967 by shrapnel from a booby trap explosion in Vietnam.  He claims that shrapnel was immediately removed from his left leg, buttocks, arm and neck in the field and that additional deeper shrapnel was extracted soon after in a surgical field hospital.  However, the healing process from the surgical procedures became complicated when he became infected with Jungle Rot.  He also contends that the Air Medal and Army Commendation Medal were omitted from his DD Form 214.  

3.  The applicant provides an Honorable Discharge Certificate from the U.S. Army Reserve, dated 3 November 1972; a DD Form 214; photographs of three medals; a citation for the Army Commendation Medal; two photographs of a Soldier; and a letter, dated 20 August 2008, from a Member of Congress. 

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 on 4 November 1966.  He arrived in Vietnam on 30 April 1967.  He served as a light weapons infantryman assigned to Company B, 1st Battalion, 14th Infantry of the 25th Infantry Division in Vietnam from 
30 April 1967 through 22 April 1968.  On 1 November 1968, the applicant was released from active duty in the temporary rank of specialist four after completing 1 year, 11 months, and 18 days of creditable active service with no time lost.

3.  The applicant’s DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar as authorized awards.

4.  There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  An undated service medical record shows the applicant was treated for tropical ulcers on his left leg at the 71st Evacuation Hospital in Vietnam.  A DA Form 8-275-3 (Clinical Record Cover Sheet), dated 5 March 1968, shows the applicant was diagnosed with pyoderma [bacterial skin infection producing pus], left leg in Vietnam.  There is no evidence of record which shows this condition was the result of hostile action. 

7.  On 27 September 1968, the applicant underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  Item 37 (Lower Extremities) on his Standard Form 88 (Report of Medical Examination), dated 27 September 1968, shows he was rated normal.  Item 33 (Have you ever had any illnesses or injury other than those already noted?) on his Standard Form 89 (Report of Medical History), dated 27 September 1968, shows he reported that he had malaria on 8 May 1968.   

8.  In support of his claim for award of the Purple Heart, the applicant provided a photograph of a Soldier with crutches and a Soldier with sores on his left leg. 

9.  There are no orders for the Air Medal in the available service personnel records.

10.  Headquarters, 4th Infantry Division General Orders, dated 19 April 1968, show the applicant received the Army Commendation Medal. 

11.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart or the Air Medal.

12.  There is no evidence the applicant received the first award of the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  His records show he received conduct and efficiency ratings of “excellent” throughout his service.

13.  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 the applicant's unit is eligible for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 48, dated 1971.

14.  Department of the Army Pamphlet 672-3 shows the applicant's unit is eligible for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on Department of the Army General Orders Number 53, dated 1970.  

15.  Department of the Army Pamphlet 672-3 also shows the applicant's unit is eligible for award of the Navy Presidential Unit Citation for actions during the period 10-15 September 1967 based on Department of the Army General Orders Number 59, dated 1969.

16.  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.  

17.  Army Regulation 672-5-1, 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 except that a service school efficiency rating based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 was not disqualifying.  However, there was no right or entitlement to the medal until the immediate commander made positive recommendation for its award and until the awarding authority announced the award in General Orders.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam.  Medical evidence of record shows the applicant was treated for tropical ulcers and bacterial skin infection in his left leg in Vietnam.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the photographs provided by the applicant are not sufficient as a basis for award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

2.  There is no evidence of record which shows the applicant received the Air Medal.  Therefore, there is insufficient evidence on which to base award of the Air Medal in this case.

3.  Orders show the applicant received the Army Commendation Medal.

4.  The applicant was released from active duty in the temporary rank of specialist four with almost 24 months of creditable active service with no time lost.  It appears the applicant met the eligibility criteria for the first award of the Good Conduct Medal for the period 4 November 1966 through 1 November 1968 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his record should be corrected to show this award.

5.  The applicant’s unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Navy Presidential Unit Citation while he was assigned to it. 

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 first award of the Good Conduct Medal for the period 
4 November 1966 through 1 November 1968; and  

	b.  adding the Good Conduct Medal, the Army Commendation Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Navy Presidential Unit Citation on 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 and the Air Medal.  



      _______ _ 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)                                         AR20080014638



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ABCMR Record of Proceedings (cont)                                         AR20080014638



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