IN THE CASE OF:	  

		BOARD DATE:	  	  20 November 2008

		DOCKET NUMBER:  AR20080014716 


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, the Purple Heart (PH).

2.  The applicant states, in effect, that his DD Form 214 (Separation Document) does not show the PH for wounds received in Vietnam on 16 September 1968. 

3.  The applicant provides the following documents in support of his application:  A copy of his DD Form 214, a copy of a VA Form 21-6782 (that contains no name and no signature) and a copy of a certificate of combat service that shows he served with the 9th Infantry Division in the RVN in support of his 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’s military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The available evidence shows the applicant was inducted into the Regular Army on 29 June 1967.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest grade he attained was pay grade E-5. 

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Vietnam from 24 June through 30 September 1968.  Item 40 (Wounds) contains an entry that indicates he received fragment wounds to both legs on 
17 September 1968.  Item 41 (Awards and Decorations) of the DA Form 20 shows the applicant was awarded the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Good Conduct Medal and the Expert Marksmanship Qualification Rifle Badge.  The Purple Heart is not included in the list of awards. 

5.  A DA Form 8-274 (Medical Condition-Physical Profile Record) dated 
11 February 1969 shows the applicant received a physical profile for fragment wounds to both legs with residual stiffness left foot (Hostile action Republic of Vietnam (RVN)). 

6.  On 27 June 1969, the applicant was honorably released from active duty after completing 1 year, 11 months and 29 days of active military service.  Item 24 of the DD Form 214 he was issued shows he earned the following awards:  The National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Good Conduct Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army Vietnam Casualty Roster.  This search revealed an entry pertaining to the applicant that confirms he was wounded in action in the RVN on 17 September 1968. 

8. A review of the applicant’s records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.


9.  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 a medical officer, and the medical treatment must have been made a matter of official record.  

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (Company A, 2nd Battalion, 39th Infantry, 9th Infantry Division) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show award of the Purple Heart was carefully considered and found to have merit.  The Vietnam Casualty Roster show the applicant was wounded in enemy action on 17 September 1968.  The applicant's DD Form 20 shows that he sustained multiple fragment wounds to both legs on 17 September 1968 while on a combat operation in the RVN.  Therefore, his DD Form 214 should be corrected to show this award.

2.  The available evidence further confirms that based on his service in the RVN, he is entitled to the RVN Gallantry Cross with Palm Unit Citation, and the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would also be appropriate to add these awards to his DD Form 214 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 Departments of the Army records of the individual concerned be corrected by:

   a.  awarding the applicant the Purple Heart for wounds received as a result of hostile action on 17 September 1968 in the RVN;

   b.  adding to Item 24 of the DD Form 214 the Purple Heart, the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.




      _______ _   _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)                                         AR20080014716



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ABCMR Record of Proceedings (cont)                                         AR20080014716



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