IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090000496 


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.  The applicant also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Bronze Star Medal, the Army Commendation Medal, and the Air Medal.  The applicant further requests correction of his DD Form 214 to show completion of the Sniper Course and the Combat Leaders Course.

2.  The applicant states that he should be awarded the Purple Heart based upon the fact that he sustained a wound to his tongue while serving in the Republic of Vietnam.  He continues that during a "Mad Minute" on 23 June 1970, he fired an M-79 grenade which struck a post in front of his foxhole.  Unfortunately, the safety device on the grenade malfunctioned and the applicant was struck by a piece of shrapnel in his tongue.  The applicant continues that he was medically evacuated for treatment and X-rays.  He states that he spent a month in the rear recovering, his tongue swelled to twice its normal size, and he could not speak properly for months.  The applicant adds that the shrapnel worked its way to the surface of his tongue approximately three months later and he dug it out with his finger.  The applicant speculates that perhaps he was not recommended for award of the Purple Heart due to the fact that his company commander was killed in the jungle on 21 July 1970 while the applicant was still in the rear.  The applicant states that he retired from his civilian job on 1 December 2007, and since then, Vietnam has come back to haunt him as if he was being strangled by a rope.  He concludes that when he visited the Department of Veterans Affairs (VA) in December 2008, his VA Readjustment Counselor insisted that he apply for the Purple Heart.
3.  The applicant states, in effect, that his receipt of the Bronze Star Medal, the Army Commendation Medal, and the Air Medal as well as his completion of the Sniper Course and the Combat Leaders Course were omitted from his DD Form 214 as the result of administrative error as he was rushed through discharge processing at Fort Lewis, Washington.

4.  The applicant provides a self-authored statement, three General Orders, two award citations, two award certificates, two certificates of completion, extracts from his medical records, four third party statements, a list of his friends who were killed in action, a list of items he wore or carried while serving in the Republic of Vietnam, extracts from three books, a DD Form 214, and a copy of a Congressional Inquiry as documentary evidence in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Although the applicant lists a Veterans Service Officer as counsel on his application, there is no indication that his counsel requests, states, or provides anything on the applicant's behalf 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 record shows that he enlisted in the Regular Army and entered active duty on 30 June 1969.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.  The applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training) effective 26 March 1971.

3.  The applicant's record shows he served a tour of duty in the Republic of Vietnam during the period of 18 April 1970 through 25 March 1971.

4.  Item 25 (Education and Training Completed) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he completed the nine-week Light Weapons Infantryman course at Fort Ord, California, in 1969.  This form does not show the applicant completed either the Sniper Course or the Combat Leaders Course.

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam the applicant served in Company D, 1st Battalion (Airmobile) of the 506th Infantry Regiment during the period of 15 May 1970 through 14 December 1970 and in Headquarters and Headquarters Company, 1st Battalion (Airmobile) of the 506th Infantry Regiment during the period of 15 December 1970 through 21 March 1971.  Item 38 also shows the applicant received conduct and efficiency ratings of "excellent" for each of his duty assignments.  The applicant's record does not contain any derogatory information or a record of a commander's disqualification for award of the Good Conduct Medal.

6.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart, the Bronze Star Medal, the Air Medal, or the Army Commendation Medal.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded or authorized to wear the Combat Infantryman Badge, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Expert Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle], and the Marksman Marksmanship Qualification Badge with Rifle Bar [M-16 Rifle].  This form does not show award of the Purple Heart, the Bronze Star Medal, the Air Medal, or the Army Commendation Medal.

9.  The applicant provides a DA Form 87 (Department of the Army Certificate of Training) issued to him upon successful completion of the Screaming Eagle Combat Leaders Course, Class 116, conducted at the 101st Screaming Eagle Replacement Training School (Airmobile) (Provisional), 101st Airborne Division (Airmobile) located at Camp Evans in the Republic of Vietnam.

10.  The applicant provides a 101st Airborne Division (Airmobile) Sniper School Certificate issued to him upon successful completion of the 101st Airborne Division (Airmobile) Sniper Course on 21 July 1970.

11.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 749, dated 19 January 1971, which shows he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam during the period of 20 September 1970 to 8 January 1971.

12.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 1012, dated 2 February 1971, which shows he was awarded the Bronze Star Medal for meritorious service in the Republic of Vietnam during the period of 1 May 1970 to 31 January 1971.  The applicant also provides copies of the citation and certificate commemorating his receipt of this award.

13.  The applicant's record contains (and he also provides a copy of) Headquarters, 101st Airborne Division (Airmobile), General Orders Number 13227, dated 4 November 1970, which shows he was awarded the Army Commendation Medal for meritorious achievement in the Republic of Vietnam during the period of 1 May 1970 to 30 September 1970.  The applicant also provides copies of the citation and certificate commemorating his receipt of this award.

14.  The applicant provides a self-authored account of the events that occurred on the day he was injured.  He states, in effect, that his unit was at a fire base located in the Republic of Vietnam providing support for an artillery unit.  He also states that on 23 June 1970, enemy forces breached their defensive perimeter and two Soldiers were killed.  The applicant states that this event put the entire unit "on edge."  He continues that on or about the following night, the unit had "mad minutes" at staggered times, in order to keep the enemy off balance.

	He adds that during the early morning hours, in the darkness of the night, he fired an M-79 grenade round at the concertina wire far below his foxhole.  He explained that M-79 rounds have a safety device designed to arm themselves after travelling approximately 30 meters.  The applicant continues that the grenades were supposed to be safe from accidental detonation from a bump or fall, or if struck by an enemy bullet as they travelled outbound.  The applicant contends that the safety device on the round he had fired "failed" [malfunctioned] because it exploded a few meters after clearing the barrel of his weapon.  He states that the blast knocked him backward violently, and bounced him off the back wall of the foxhole, which left him disoriented.  
	The applicant states he soon realized that he was bleeding profusely from his mouth and sought medical attention at the unit Aid Station.  Once there, medical personnel (medics) stripped the applicant of his clothing in order to locate all of his injuries.  The applicant states that as the blood flow subsided because of the body's natural defenses, the medics determined his only injuries were a chipped front tooth and a hole in the tip of his tongue.  He continues that the medics determined there was nothing they could do and decided to have him medically evacuated to the main base, Camp Evans, at daybreak.

	The applicant states that he was x-rayed and examined by a military doctor at the Camp Evans medical treatment facility.  The doctor determined that there was nothing he could do for the applicant at that location and had him medically evacuated to see a specialist in Da Nang.  The specialist also determined that there was nothing to be done and opined that the applicant's body would eventually reject the metal fragment naturally.  The applicant states that the specialist's prognosis was correct and that several months later the shrapnel did surface and was removed.

	The applicant states that he never understood why he did not receive a Purple Heart.  He summarizes that "This wound occurred as a result of enemy action, even though the shrapnel was apparently from my own weapon, I was not guilty of any gross negligence.  I was wounded because the M-79 grenade's safety device failed.  Further, my Army medical records clearly state, 'frag in tongue' more than once!"

	The applicant speculates that perhaps he was not recommended for award of the Purple Heart due to the fact that his company commander and other unit members were killed in the jungle while the applicant was still in the rear, where he was out of sight and out of mind to the remainder of his unit.  The applicant continues that in addition to his occasional slurring of words when he is tired, he has had an awful ringing in his ears ever since the day he was blasted from the M-79 grenade round exploding a few meters away from him due to the safety device failing.  He concludes that since he retired from his civilian job in December 2007, the ringing in both ears has become louder.

15.  The applicant provides a statement from his former platoon sergeant recounting the events and circumstances of the applicant's injury in essentially the same manner as the applicant recalled them.  The platoon sergeant added that the protocol for an infantry company on a perimeter was to have two to four "mad minutes" throughout the evening.  He clarified that during a "mad minute," 100 percent of the personnel on the perimeter were to be awake and at the ready at certain times of the evening.  These times were briefed to the leaders and relayed to the Soldiers.  At the predetermined times, it was a minute of madness, as everyone on the perimeter would fire their weapons and throw grenades in an attempt to deter enemy forces from sneaking up on them.

	The platoon sergeant continued that during one of the "mad minutes," the applicant had his M-79 and was firing at will.  As the platoon sergeant walked the perimeter, someone informed him that the applicant had been shot.  He stated that by the time he reached the applicant, he was covered in blood, his flak jacket was in shambles and he was shell shocked.  The platoon sergeant thought that the unit was taking fire from within the perimeter even though there had been no reported sightings of the enemy.

	The platoon sergeant corroborated the facts that the applicant was seen at the aid station, was medically evacuated for additional treatment, and spent at least a month in the rear receiving treatment for his injury.

	The platoon sergeant stated that he cannot say with certainty that the applicant was hit by an enemy satchel charge or if his M-79 round was defective, but he can verify he was injured during what he believed was a result of action taken against a hostile situation.  He continued that a review of the unit's after action reports would show that they had a lot of action, but very few Purple Hearts because they just went about their jobs, and medals meant very little to them at the time.  He also stated that recommending the applicant for the Purple Heart was the furthest thing from his mind, not because the applicant did not deserve it, but because they were kids doing a man's job and they had not been trained to request such awards for their Soldiers.

16.  The applicant provides personal statements from three former Soldiers in which they essentially corroborated that they served with the applicant while stationed in the Republic of Vietnam.

17.  The applicant provides a handwritten list containing the names of eleven of his friends whom he states were killed in action.  He also provides two pages extracted from the Vietnam Veterans Memorial Internet website (thewall-usa.com) containing information about two of his friends whose names appear on the aforementioned list.

18.  The applicant provides twelve non-sequential pages extracted from a book entitled Ripcord - Screaming Eagles Under Siege - Vietnam 1970 which contain a map depicting the location of the firebase, photographs of Soldiers from the applicant's unit, highlights of the unit's actions, and a list of people (including the applicant) who were interviewed during the process of writing the book.

19.  The applicant provides six non-sequential pages extracted from a book entitled Troubled Hero - A Medal of Honor, Vietnam, and the War at Home in which he has highlighted several references to a Soldier who was in his unit.  There is no mention of the applicant in this extract.

20.  The applicant provides five pages extracted from the 1st Battalion, 506th Infantry, Vietnam - 1970 yearbook posted on the 506th Infantry Regiment's Internet website (506infantry.org) which contain the photographs, ranks, and names of 64 Soldiers.  The applicant has highlighted the photographs of himself and six other Soldiers.  He also provides a photograph of himself which he indicates was taken at Firebase Kathryn.

21.  The applicant provides a list of the items that he either wore or carried while in the A-Shau Valley jungle.

22.  The applicant's record contains (and he also provides copies of) four documents rendered during the period of 3 July 1970 through 24 July 1970 which all show that he received medical treatment for an injury he sustained which resulted in fragments remaining in his tongue.  None of these documents described the facts or circumstances under which the applicant sustained his injury.

23.  The applicant's record contains a Standard Form 88 (Report of Medical Examination), dated 25 March 1971, which was completed in conjunction with the applicant's pre-separation medical examination.  Item 21 (Mouth and Throat) in the Clinical Evaluation portion of this form indicates the applicant had no abnormalities in his mouth at the time.  Item 73 (Notes and Significant or Interval History) shows the applicant signed a statement indicating that there had been no change in his health since his last physical.  Item 74 (Summary of Defects and Diagnoses) of this form is blank.

24.  The applicant provides Medical Record Progress Notes from the VA, North Texas Healthcare System, dated 11 March 2009.  This form indicates the applicant's medical records were not available for review at the time of his visit.  Based upon information provided by the applicant, the examining dentist made the following entry in the Medical History (subjective complaints) portion of the form:  "1970 Vietnam infantry support patient was firing M79 grenade launcher and it blew up in his face resulting in FX [fractured] crown tooth #8 and scrap metal entering his tongue.  ENT [ear, nose, throat] note from 7/24/70 said 'no indication for remova..'  Pat [patient] states it eventually '..worked its way out.."  Pat states he has "..difficulty with speech when he is tired."  The Physical Examination (objective findings) portion of the form shows the applicant had mild mid dorsum tongue fibrois/scarring.
25.  The applicant's name does not appear on the Vietnam Casualty Roster.  There is no evidence in the available records which shows the applicant was recommended for or awarded the Purple Heart.

26.  The applicant provides a copy of a letter he sent to a Member of Congress requesting assistance with having his record corrected.  In turn, the Member of Congress sent a letter to the ABCMR, in effect, expressing his desire for the applicant's case to be reviewed thoroughly and given every possible consideration allowed by existing laws, policies, and regulations.  The Member of Congress also requested that the ABCMR confirm receipt of the applicant's information and to keep him apprised of the status of the case.

27.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  This regulation established standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated that service schools, installation training courses (qualification courses), military correspondence courses, military sponsored courses completed in civilian schools and colleges, and off-duty courses the separating service member had completed successfully during the period covered by the DD Form 214 would be entered in Item 25 of the DD Form 214.

28.  Army Regulation 672-5-1 (Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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 Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

29.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This regulation shows the 1st Battalion of the 506th Infantry Regiment, the unit the applicant was assigned to while serving in the Republic of Vietnam, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during the period of 1 March 1971 through 9 October 1971 by Department of the Army General Orders Number 6, dated 1974.

30.  Department of the Army Pamphlet 672-3 shows the 1st Battalion of the 506th Infantry Regiment, was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during the period of 3 October 1968 through 2 May 1970 by Department of the Army General Orders Number 48, dated 1971.

31.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.

32.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam. During the applicant's tour in Vietnam he participated in three campaigns:  the Vietnam Winter-Spring 1970, the Department of the Army Sanctuary, and the Vietnam Counteroffensive Phase VII.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

33.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 military medical personnel, and the medical treatment must have been made a matter of official record.  

34.  Army Regulation 600-8-22 provides, in pertinent part, that when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.
The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart.  Two of the ten examples provided are as follows:

	a.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; and

	b.  Self-inflicted wounds, except when in the heat of battle, and not involving gross negligence.

35.  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.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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 he should be awarded the Purple Heart.  He also contends that his DD Form 214 should be corrected to show award of the Bronze Star Medal, the Army Commendation Medal, and the Air Medal; and completion of the Sniper Course and the Combat Leaders Course.  Each of these contentions was carefully considered.

2.  Evidence shows that the applicant completed the Sniper Course and the Combat Leaders Course during the period covered by his DD Form 214.  Contemporaneous policy prescribed inclusion of courses of this nature on the separating service member's DD Form 214.  Therefore, the applicant is entitled to have completion of the Sniper Course and the Combat Leaders Course shown in Item 25 of his DD Form 214.

3.  General orders awarded the applicant the Air Medal.  Therefore, he is entitled to have his records corrected to show receipt of this award.

4.  General orders awarded the applicant the Bronze Star Medal.  Therefore, he is entitled to have his records corrected to show receipt of this award.

5.  General orders awarded the applicant the Army Commendation Medal.  Therefore, he is entitled to have his records corrected to show receipt of this award.

6.  General Orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for accomplishments during the applicant's tenure in the unit.  Therefore, he is entitled to have his records corrected to show this foreign unit award.


7.  General Orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for accomplishments during the applicant's tenure in the unit.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

8.  Records show that the applicant was awarded the Vietnam Service Medal.  Evidence shows that he participated in three campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of three bronze service stars to be affixed to his previously awarded Vietnam Service Medal.

9.  Evidence of record shows the applicant completed a period of honorable service during which he received all “excellent” conduct and efficiency ratings and had no convictions by a court-martial.  Additionally, there is no evidence that the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  Therefore, he is entitled to award of the Good Conduct Medal (first award) for the period of 30 June 1969 to 26 March 1971 and entitled to correction of his records to show this award.

10.  Although evidence shows the applicant sustained a shrapnel injury to his tongue while serving in the Republic of Vietnam, that the injury was treated by military medical personnel, and the medical treatment was made a matter of official record, there is no corroborating evidence present in the available records which shows the applicant was wounded as the result of hostile action.  In fact, by his own admission, the applicant was accidentally injured by a projectile from his own weapon during a barrage of fire that was scheduled to occur at a specific time regardless of the presence of enemy forces.  Therefore, his injury was not incurred during the "heat of battle."

11.  The applicant's name does not appear on the Vietnam Casualty Roster and his service personnel file is void of any evidence that the applicant was ever recommended for the Purple Heart.

12.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in combat and who faced similar circumstances to grant the requested relief.

13.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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 the applicant the Good Conduct Medal (first award) for the period 30 June 1969 to 26 March 1971; 

	b.  adding the following awards to item 24 of the applicant's DD Form 214:

		(1)  the Good Conduct Medal (first award);

		(2)  the Bronze Star Medal;

		(3)  the Army Commendation Medal;

		(4)  the Air Medal;

		(5)  the Republic of Vietnam Gallantry Cross with Palm Unit Citation; 

		(6)  the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and

		(7)  three bronze service stars to be affixed to his previously-awarded Vietnam Service Medal; and


	c.  adding the following courses to item 25 of the applicant's DD Form 214:

		(1)  the Sniper Course and

		(2)  the Combat Leaders Course.

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.



      _______ _   _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.



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ABCMR Record of Proceedings (cont)                                         AR20090000496



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