IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080019340 


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 the Purple Heart (PH) be added to Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that the PH he received while serving in the Republic of Vietnam (RVN) is not included on his DD Form 214.  The addition of the PH to his DD Form 214 would authorize him additional Department of Veterans Affairs benefits.

3.  The applicant provides a Bronze Star Medal (BSM) citation in support of his request.

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 record shows that he was inducted into the Army of the United States and entered active duty on 10 January 1969.  He was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman).

3.  Item 31 (Foreign Service) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 6 January 1970 to 2 January 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the Company E, 1st Battalion, 12th Infantry Regiment, 4th Infantry Division, performing duties in MOS 11C as a forward observer and squad leader. It also shows that he received "excellent" conduct and efficiency ratings at each of his active duty assignments.

4.  Item 40 (Wounds) of the applicant's DA Form 20 includes an entry showing he sustained a shrapnel wound to his right shoulder on 13 May 1970.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Combat Infantryman Badge (CIB), BSM with "V" Device, Expert Marksmanship Qualification Badge with Grenade Bar, Sharpshooter Marksmanship Qualification Badge (Rifle M-14), Marksman Marksmanship Qualification Badge (Rifle M-16), and one Overseas Service Bar.

5.  The applicant's military personnel records jacket (MPRJ) is void of any derogatory information and/or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

6.  The applicant's MPRJ contains Headquarters, United States Army Training Center, Infantry and Fort Polk Special Orders Number 081, dated 7 April 1969, which shows he qualified as an "expert" with the .45 Caliber Pistol.  It also contains the following awards orders issued by the 4th Infantry Division in the RVN:  General Orders (GO) Number 5022, dated 13 October 1970, which awarded him the BSM with "V" Device, for heroism in connection with military operations against an armed hostile force in Cambodia on 12 May 1970; GO Number 5259, dated 19 October 1970, which awarded him the BSM for achievement for the period 14 September to 15 October 1970; GO Number 5269, dated 20 October 1970, which awarded him the Air Medal (AM) for meritorious achievement during the period 20 January to 20 October 1970; and GO Number 5267, dated 20 October 1970, which awarded him the Army Commendation Medal (ARCOM) for meritorious service during the period January to October 1970.  The narrative supporting the BSM with "V" Device in GO Number 5022 contains a statement indicating the applicant received a fragmentation wound to his right arm during this action.

7.  The applicant’s MPRJ also contains a Standard Form 509 (Clinical Record-Doctor’s Progress Notes) which confirms the applicant was treated for a fragment wound on 16 May 1970.  It also contains a Standard Form 88 (Report of Medical Examination), dated 13 November 1970, which documents his separation physical examination.  This document contains an entry indicating the applicant sustained a shrapnel wound to his right shoulder.

8.  On 13 November 1970, the applicant was honorably released from active duty after completing a total of 1 year, 10 months, and 4 days of active military service.  Item 24 of the DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  NDSM, BSM with "V" Device, VSM, CIB, RVN Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge (Rifle M-14), Marksman Marksmanship Qualification Badge (Rifle M-16), and one Overseas Service Bar.

9.  The Vietnam casualty roster maintained by the Adjutant Generals Office Casualty Division does not list the applicant as being wounded in action.

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and that treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 also provides that the bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Bronze Star Medal.

12.  Paragraph 2-13 of the awards regulation contains guidance on award of the VSM and states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, he was credited with participating in the Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII campaigns.

13.  Chapter 4 of the awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the 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 military service, in which case, a period of more than 1 year is a qualifying period. Although there is no automatic entitlement to the AGCM, disqualification must be justified.

14.  Department of the Army GO Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that item 24 of his DD Form 214 should be corrected to show the PH has been carefully considered and found to have merit. The evidence of record confirms that although there is no entry listed on the Vietnam casualty roster, the applicant was wounded in action on 13 May 1970 while serving in the RVN as evidenced by the narrative contained on his BSM with "V" Device orders.  His record also shows he was treated for this wound by military medical personnel as evidenced by a Standard Form 509 that confirms treatment for a shrapnel wound and is corroborated by a Standard Form 88 that documents a shrapnel wound to his right shoulder.  Therefore, it would be appropriate and serve the interest of justice and equity to award the applicant the PH for wounds sustained in action in the RVN on 13 May 1970 and to add this award to his record and DD Form 214 at this time.

2.  The applicant's record also confirms that he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of any derogatory information or an unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 10 January 1969 to 13 November 1970, and to add this award to his record and separation document at this time.

3.  The evidence of record includes general orders awarding the applicant the BSM with "V" Device and the BSM for achievement.  Therefore, his DD Form 214 should be corrected to show the BSM with Oak Leaf Cluster to denote a second award.

4.  The evidence of record also includes official orders awarding the applicant the AM, ARCOM, and Expert Marksmanship Qualification Badge with Pistol Bar.  Item 41 of his DA Form 20 confirms he qualified as an expert with the hand grenade, which rendered him eligible for the Expert Marksmanship Qualification Badge with Hand Grenade Bar.  Therefore, it would be appropriate to include all of these awards in item 24 of his DD Form 214 at this time.

5.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation and three bronze service stars to be worn with his already-awarded VSM.  Therefore, it would also be appropriate to add these awards to his record and 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 Department of the Army records of the individual concerned be corrected by:

	a.  awarding him the Purple Heart for wounds received in action in the RVN on 13 May 1970 and the Army Good Conduct Medal, for his qualifying period of honorable active duty service from 10 January 1969 to 13 November 1970;

	b.  by amending item 24 of the DD Form 214 by deleting the entry "Bronze Star Medal with "V" Device" and by adding the Bronze Star Medal (1st Oak Leaf Cluster) with "V" Device, Purple Heart, Air Medal, Army Commendation Medal, Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Hand Grenade and Pistol Bars, and three bronze service stars to be worn with his already- awarded Vietnam Service Medal; and


	c.  providing him a corrected separation document that includes these changes.



      __________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)                                         AR20080019340



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ABCMR Record of Proceedings (cont)                                         AR20080019340



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