IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080018843 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Purple Heart and any other awards and decorations that he is entitled to that are not shown. 

2.  The applicant essentially states that he received his Purple Heart about 
3 months before he departed from Vietnam but recently realized that it is not listed on his DD Form 214 while applying for veteran's benefits.  He also states that he was wounded by shrapnel in his shoulder from a B40 rocket and that he was hospitalized for 4 to 5 weeks.  
 
3.  The applicant provides his DD Form 214 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's military records show that he enlisted in the Regular Army on 22 October 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Crewman).  He was then reassigned to Fort Benning, Georgia to attend the Noncommissioned Officer (NCO) Candidate Course, but he failed to complete this course.  He arrived in the Republic of Vietnam on 17 July 1969, and initially served with Company C, 5th Battalion, 7th Cavalry Regiment, 1st Cavalry Division.  On 9 April 1970, he was reassigned to Headquarters and Headquarters Company of the same battalion.  He returned to the continental United States on 21 June 1970 and was honorably released from active duty on 22 June 1970.  The DD Form 214 that was issued to him at the time of his release from active duty shows he was awarded the Bronze Star Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 (Enlisted Qualification Record) also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart. 

4.  However, item 40 (Wounds) of the applicant's DA Form 20 contains an entry essentially showing that he sustained a fragmentation wound to his left shoulder on 8 January 1970.  The Vietnam Casualty Roster also contains an entry showing the applicant was wounded in action on 5 January 1970, which is likely the same wounding shown in item 40 of the applicant's DA Form 20, as the applicant did not state that he was wounded in action twice and that he stated that he was hospitalized for 4 to 5 weeks after he was wounded.  The medical examination that was conducted in conjunction with the applicant's release from active duty also shows that he had a history of a fragmentation wound to his left shoulder.

5.  During a review of the applicant’s records, it was determined that he is entitled to additional awards and decorations that are not shown on his DD Form 214.


6.  The applicant served 1 year, 8 months, and 1 day of continuous enlisted active duty service from 22 October 1968 to 22 June 1970, but his military records do not show that he was awarded the Army Good Conduct Medal.  Although the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 May 1969 for willfully disobeying a lawful order from his superior NCO to shave, in which he received an oral reprimand as punishment, all of his conduct and efficiency ratings were "excellent" or "unknown" throughout his active duty service.  His conduct and efficiency ratings were even "excellent" during the period in which he accepted NJP.  There is also no other derogatory information in the available records which could be a disqualifying factor for this period of active duty service for award of the Army Good Conduct Medal.

7.  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 
5th Battalion, 7th Cavalry Regiment, the battalion was cited for award of the Valorous Unit Award by Department of the Army General Orders Number 43, dated 1972, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Department of the Army General Orders Number 42, dated 1972.

8.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he participated in the Vietnam Summer-Fall 1969 campaign, the Vietnam Winter-Spring 1970 campaign, and the DA Sanctuary Counteroffensive campaign.

9.  The applicant's DD Form 214 does not show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar or the First Class Gunner Marksmanship Qualification Badge with Mortar Bar, but he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar by Headquarters, United States Army Training Center, Fort Campbell, Kentucky Special Orders Number 315, dated 10 December 1968.  He was also awarded the First Class Gunner Marksmanship Qualification Badge with Mortar Bar by Headquarters, U.S. Army Training Center (Infantry) Fort Lewis, Washington Special Orders Number 39, dated 8 February 1969.  The First Class Gunner Marksmanship Qualification Badge was subsequently renamed the Sharpshooter Marksmanship Qualification Badge.

10.  Army Regulation 600-8-22 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

11.  Paragraph 5-1 of Army Regulation 600-8-22 states that orders are not published for service medals, but they are annotated on records by the personnel officer.

12.  Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s active duty service, 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 11 November 1956 was not disqualifying. 

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the award of the Purple Heart and any other awards and decorations that he is entitled to that are not shown. 


2.  While the date of the applicant's wounding has been shown as either 5 or 
8 January 1970 depending on which source is used, the evidence of record clearly shows that the applicant was wounded in action in January 1970, and the applicant stated that he has already been awarded the Purple Heart.  Therefore, it would be appropriate at this time to correct his military records to show the award of the Purple Heart.

3.  The applicant served 1 year, 8 months, and 1 day of continuous enlisted active duty service from 22 October 1968 to 22 June 1970, and although his accepted NJP for failing to obey an order to shave, all of his conduct and efficiency ratings were "excellent" or "unknown" throughout his active duty service, with even "excellent" conduct and efficiency ratings during the timeframe when he accepted NJP.  There is also no other derogatory information in the available records which could be a disqualifying factor for this period of active duty service for award of the Army Good Conduct Medal.  Therefore, it would be appropriate at this time to award him the Army Good Conduct Medal for the period 22 October 1968 to 22 June 1970, and correct his military records to show the award of the Army Good Conduct Medal.

4.  General orders awarded the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 5th Battalion, 7th Cavalry Regiment while the applicant was assigned to this battalion.  Therefore, he is entitled to award of the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and correction of his military records to show these unit awards.

5.  The applicant participated in three campaigns during his tour in Vietnam; therefore, he is entitled to correction of his military records to show three bronze service stars to be affixed to his already awarded Vietnam Service Medal.

6.  Special orders awarded the applicant the Expert Marksmanship Qualification Badge with Rifle Bar and the First Class Gunner Marksmanship Qualification Badge with Mortar Bar, and the latter of these badges was subsequently renamed the Sharpshooter Marksmanship Qualification Badge.  However, neither of these badges are listed on his DD Form 214.  Therefore, he is entitled to correction of his military records to show the award of the Expert Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Mortar Bar.



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 Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Army Good Conduct Medal for the period 22 October 1968 to 22 June 1970 while serving as a specialist four; and

   b.  adding the following awards to his DD Form 214:  the Purple Heart, the Army Good Conduct Medal, the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. three bronze service stars to be affixed to his already awarded Vietnam Service Medal, the Expert Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Mortar Bar.

	c.  providing him the appropriate document to show these corrections.




      _______ _ 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)                                         AR20080018843



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ABCMR Record of Proceedings (cont)                                         AR20080018843



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