IN THE CASE OF:	  

		BOARD DATE:	       3 February 2009

		DOCKET NUMBER:  AR20080017880 


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 award of the Purple Heart.

2.  The applicant states, in effect, that he was wounded in the right shoulder two days prior to the end of his tour in Vietnam.  He contends that he was assigned to the 2nd Platoon, Company B, 1st Air Cavalry and that he was wounded in Bien Hoa in an attack by the Viet Cong.  He states that he was held over in Saigon and then evacuated to Japan for six weeks.  From there he was transferred to the United States for further medical treatment.

3.  The applicant provides Department of Veterans Affairs (DVA) documentation and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 was inducted on 9 December 1968.  He arrived in Vietnam on 
2 June 1969.  He served as a light weapons infantryman assigned to Company B, 1st Battalion, 5th Cavalry of the 1st Cavalry Division in Vietnam from 10 June 1969 until he was hospitalized on 31 May 1970 in Vietnam.  He was transferred to the United States on 11 June 1970 for further medical treatment.  On 
16 September 1970, he was released from active duty in the rank of sergeant after completing 1 year, 9 months, and 8 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, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Air Medal, the Army Commendation Medal, and the Bronze Star Medal as authorized awards.   

4.  There are no orders for the Purple Heart in the available records.

5.  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. 

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  On 27 August 1970, the applicant underwent a separation physical examination which notes that he had scars on his right shoulder and back.  Item 74 (Summary of Defects and Diagnoses) on his Standard Form 88 (Report of Medical Examination) states that he received a gunshot wound to his right shoulder as a result of hostile action in Vietnam in May 1970.

8.  There are no orders for the Army Commendation Medal in the available records.  However, Headquarters, 1st Cavalry Division (Airmobile) General Orders Number 4612, dated 28 March 1970, show the applicant received the Army Commendation Medal with "V" Device for heroism on 1 February 1970.

9.  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.

10.  Records show the applicant participated in four campaigns during his assignment in Vietnam.

11.  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 Valorous Unit Award for actions during the period 1 May 1970 to 29 June 1970 based on Department of the Army General Orders Number 43, dated 1972.

12.  Department of the Army Pamphlet 672-3 shows the applicant's unit is eligible for award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm (May 1969 to February 1970) based on Department of the Army General Orders Number 11, dated 1973; and his unit is eligible for a second award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm (21 February 1970 to 28 February 1971) based on Department of the Army General Orders Number 42, dated 1972.

13.  Paragraph 6 (Miscellaneous Information) of Department of the Army Pamphlet 672-3 states that only one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation may be worn; however, records should show entitlement to all authorized awards of this foreign unit award. 

14.  Department of the Army Pamphlet 672-3 also 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 42, dated 1972.

15.  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.  

16.  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 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 a positive recommendation for its award and until the awarding authority announced the award in general orders.

17.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star based on qualifying service for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was hospitalized on 31 May 1970 in Vietnam and contemporaneous medical evidence of record shows he was wounded as a result of hostile action.  Therefore, the entry on the applicant’s Standard Form 88 which states that he received a gunshot wound to his right shoulder as a result of hostile action in May 1970 in Vietnam is accepted as sufficient evidence on which to base award of the Purple Heart.    

2.  The applicant’s DD Form 214 shows the Army Commendation Medal as an authorized award.  However, there are no orders for this medal.  Orders do show he received the Army Commendation Medal with "V" Device.  Therefore, it would be appropriate to correct his DD Form 214 to show the Army Commendation Medal with "V’ Device.

3.  The applicant was separated in the rank of sergeant with 23 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        9 December 1968 through 16 September 1970 based on completion of a period of qualifying service ending with the termination of a period of Federal military service.  Therefore, his records should be corrected to show this award.

4.  The applicant participated in four campaigns during his assignment in Vietnam which entitles him to award of the Vietnam Service Medal with four bronze service stars.

5.  The applicant’s unit was cited for award of the Valorous Unit Award and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.   
 
6.  The applicant's unit was cited for two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and so he is eligible to wear one of those awards.  However, his DD Form 214 should be amended to show two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of 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 
9 December 1968 through 16 September 1970;  

	b.  deleting the entry, "ARMY COMMENDATION MEDAL" in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214; and 

	c.  adding the Good Conduct Medal, the Army Commendation Medal with "V" Device, the Valorous Unit Award, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and four bronze service stars for wear on his already-awarded Vietnam Service Medal on his DD Form 214.

2.  The majority of the Board further determined during their review that the available evidence was not strong enough for awarding the Purple Heart.  The medical evidence is after the fact at a separation physical, not at the time of the 

wounding.  The applicant is not listed on the Vietnam casualty list.  Annotation on the medical form is not contemporaneous with the hospitalization and only is noted relative to a scar, so place and time of occurrence is assumed.



      ____________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)                                         AR20080017880



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ABCMR Record of Proceedings (cont)                                         AR20080017880



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