IN THE CASE OF:	  

		BOARD DATE:	  	  2 April 2009

		DOCKET NUMBER:  AR20090000787 


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, correction of his medical records to show an injury to his left foot on 29 March 1970.  He also requests award of the Purple Heart.

2.  The applicant states, in effect, that he sustained a shrapnel wound to his left foot on 29 March 1970 which warranted award of the Purple Heart.

3.  The applicant submitted a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a Western Union Telefax 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 requested that his medical records be corrected to show that he sustained injuries to his left foot on 29 March 1970.  However, the applicant's medical records are not available for review; therefore, his request for correction of his medical records will not be discussed further in these Proceedings.

3.  The applicant's record shows he was inducted into the Army of the United States on 2 April 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 13A (Artillery Radio Telephone Operator).  The highest rank he attained while serving on active duty was specialist (E-4).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 13 September 1969 through 19 November 1970 performing duties in MOS 13A.  During his Republic of Vietnam tour he was assigned to the 2d Battalion, 19th Artillery, 1st Cavalry Division (Airmobile).

5.  Item 39 (Campaigns) of the applicant's DA Form 20 shows he participated in an unnamed campaign which commenced on 9 June 1969.

6.  Section 40 (Wounds) of the applicant's DA Form 20 shows the applicant received fragment wounds to his left foot on 29 March 1970.

7.  Section 41 (Awards and Decorations) of the applicant's DA Form 20 shows he earned the following awards during his active duty tenure:  the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal, one overseas service bar, the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the 2nd Class Marksmanship Qualification Badge with Machinegun Bar (M-60).

8.  The applicant submitted a copy of a Western Union Telefax which stated that the applicant was slightly wounded in action on 29 March 1970 and received a fragment wound to his left foot.

9.  The applicant's name is listed on the Vietnam casualty roster for injuries received on 29 March 1970.

10.  The applicant's records contain a copy of General Orders Number 6773, Headquarters, 1st Cavalry Division (Airmobile), dated 29 April 1970, awarding him the Army Commendation Medal with "V" device for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 29 March 1970.

11.  On 21 November 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) after completing a total of 1 year, 7 months, and 20 days of active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Army Commendation Medal, the Bronze Star Medal, and the Air Medal.

12.  A review of the applicant’s record indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

13.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 600-200 (Personnel Separations), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

15.  Appendix B of Army Regulation 600-8-22 lists the campaigns for the Vietnam Conflict, which indicates that the applicant participated in four campaigns during his service in Vietnam.  This appendix shows by his dates of service that the applicant participated in Vietnam Summer-Fall 1969 Campaign, the Vietnam Winter-Spring 1970 Campaign, the DA Sanctuary Counteroffensive Campaign, and the Vietnam Counteroffensive Phase VII Campaign.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  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 pamphlet shows the unit to which the applicant was assigned was cited for award of the Valorous Unit Award for the period 1 May 1969 thorough 29 June 1970 by Department of the Army General Orders Number 43, dated 1972; the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period May 1969 through February 1970 by Department of the Army General Orders Number 11, dated 1973; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 January 1969 through 1 February 1970 by Department of the Army General Orders Number 42, dated 1972.

17.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree in which an individual has qualified in a prescribed record course, and an appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification badges are in three classes:  Expert, Sharpshooter, and Marksman.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to correction of his record to show award of the Purple Heart was carefully considered and found to have merit.

2.  The evidence of record shows the applicant received fragment wounds while serving in the Republic of Vietnam.  Item 40 of the applicant’s DA Form 20 shows he was wounded on 29 March 1970.  Therefore, his records should be corrected to show award of the Purple Heart.

3.  General orders show that the applicant was awarded the Army Commendation Medal with "V" Device.  Therefore, he is entitled to have his records corrected to show this award.

4.  Records show that the applicant participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

5.  General orders show that the 2d Battalion, 19th Artillery Regiment, 1st Cavalry Division (Airmobile) was 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 while the applicant was assigned to this unit which are not shown on his separation document.  Therefore, he is entitled to correction of his records to show these awards.

6.  Evidence of record shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  Therefore, his records should be corrected to show this award.

7.  Evidence of record shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  Therefore, his records should be corrected to show this award.
8.  The evidence of record shows he was awarded the Marksman [2nd Class] Marksmanship Qualification Badge with Machinegun Bar (M-60).  Therefore, his records should be corrected to show this award.

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 be corrected by:

	a.  awarding him the Purple Heart for wounds received on 29 March 1970;

	b.  deleting the Vietnam Service Medal from his DD Form 214; and 

	c.  adding the Purple Heart, the Vietnam Service Medal with four bronze service stars, 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, the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
(M-16), and the Marksman Marksmanship Qualification Badge with Machinegun Bar (M-60) to his DD Form 214.



      		___________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)                                         AR20090000787



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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