IN THE CASE OF:	

		BOARD DATE:	 9 April 2009 

		DOCKET NUMBER:  AR20090000736 


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 that he be awarded the Purple Heart.

2.  The applicant states that while inserting South Vietnamese troops into a "hot" landing zone, a round which killed most of the South Vietnamese troops wounded him.

3.  The applicant provides excerpts from his medical evaluation board (MEBD).

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 was inducted into the Army of the United States and entered active duty on 25 February 1971.  He was awarded the military occupational specialty of aircraft maintenance crewman and was promoted to pay grade E-4.  He served in Vietnam from 22 August 1971 to 2 February 1972.

3.  A casualty report shows that on 12 January 1972, the applicant broke his lower left leg and sustained shrapnel to his left calf while he was crew chief on a helicopter carrying troops which was receiving "intense hostile small arms fire."

4.  In the applicant's MEBD Narrative Summary, it was stated that "The patient sustained a foreign body missile wound to the left leg from a rocket fired from a helicopter while on active duty in RVN on 12 Jan 1972."

5.  On 6 November 1972, the applicant was retired for physical disability.  His DD Form 214 shows he was awarded the National Defense Service Medal, the Aircraft Crewman Badge, the Vietnam Service Medal, and the Air Medal.

6.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

7.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the pertinent identified campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Those periods are Consolidation I (1 July 1971 to 30 November 1971) and Consolidation II (1 December 1971 to 29 March 1972).

8.  Department of the Army General Order Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal with Device (1960).  This medal was awarded by the Government of the Republic of Vietnam to all members of the Armed Forces of the United States for qualifying service in the Republic of Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in the Republic of Vietnam for 6 months or more or for less than 6 months and was wounded by hostile fire.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was wounded by a missile fired from a helicopter.  Since the North Vietnamese did not use helicopters in combat, it appears the applicant's wound was a result of friendly fire while engaged with the enemy.

2.  At the time the applicant was wounded, a Purple Heart was not awarded for friendly fire.  However, the 1994 change in law provided for awarding the Purple Heart for friendly fire while directly engaged in armed conflict.  Since the applicant was serving as a crew chief on a helicopter carrying troops which was receiving intense hostile small arms fire when he was wounded, the applicant now qualifies for award of the Purple Heart.

3.  Based on his service in Vietnam, the applicant is also entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Campaign Medal with Device (1960), and two bronze service stars to be worn on his already-awarded Vietnam Service Medal.

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 incurred in Vietnam on 12 January 1972; and

	b.  amending his DD Form 214 by adding the Purple Heart, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam 
Campaign Medal with Device (1960), and two bronze service stars to be worn on his already-awarded Vietnam Service Medal.




      _______ _ 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)                                         AR20090000736



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ABCMR Record of Proceedings (cont)                                         AR20090000736



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