IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20090000841 


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 Combat Infantryman Badge (CIB) and a second award [with one oak leaf cluster (1OLC)] of the Purple Heart (PH), and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected accordingly.

2.  The applicant states, in effect, that he should have been awarded the CIB and PH with 1OLC because he served in Vietnam as an infantryman and was wounded twice.

3.  The applicant provides a copy of his DD Form 214, a copy of a Western Union Telegram showing he was slightly wounded on 16 May 1969, a copy of a Western Union Telegram showing he was slightly wounded on 21 June 1969, and a copy of his PH Citation for his 21 June 1969 wounds.

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 was inducted in Milwaukee, Wisconsin, on 24 June 1968.  He completed his basic training at Fort Campbell, Kentucky, and his advanced individual training as a light weapons infantryman at Fort Lewis, Washington, before being transferred to Vietnam on 14 November 1968 for assignment to Company C, 1st Battalion, 52nd Infantry Regiment, as a rifleman.  He was advanced to the rank and grade of private first class/E-3 on 16 November 1968.

3.  On 16 May 1969, the applicant received fragmentation wounds to the back of the head when his unit came under attack while in a night defensive position.  He was treated and returned to his unit.

4.  On 21 June 1969, he was wounded in a booby trap explosion and received multiple fragmentations wounds to both upper and lower extremities and both buttocks.  He was subsequently evacuated to the 249th General Hospital in Japan and then to Irwin Army Hospital at Fort Riley, Kansas.  He was advanced to the rank and grade of specialist four/E-4 on 17 December 1969.

5.  On 15 June 1970, orders were published by Headquarters, Medical Department Activity, at Fort Riley which awarded him the PH for wounds received in action in Vietnam on 21 June 1969.

6.  On 18 August 1970, the applicant was retired by reason of permanent physical disability with a 90 percent disability rating.  He had served 2 years, 7 months, and 25 days of total active service and his DD Form 214 issued at the time of his retirement shows that he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal (VSM), and the PH.

7.  A review of the Vietnam casualty listing confirms that he was reported as being wounded as a result of hostile action on 16 May and 21 June 1969.

8.  A review of the available record fails to show that the applicant was ever awarded the PH for his wounds on 16 May 1969 or that he was ever awarded the CIB.  Additionally, his records show that he received excellent conduct and efficiency ratings throughout his service and his records are void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the PH 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 medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry military occupational specialty.  They must have engaged in active ground combat while assigned or attached to an infantry unit of brigade, regimental, or smaller size.

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time, established the criteria for award of the AGCM.  It states, in pertinent part, that the AGCM was established by Executive Order 8809, 28 June 1941, and was amended by Executive Order 9323, 1943, and by Executive Order 10444, 10 April 1953, and is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service.  The regulation also states, in pertinent part, that for the first award only, upon termination of service on or after 27 June 1950, a period of service of less than 3 years but more than 1 year qualifies for award of the AGCM.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the pamphlet indicates that the applicant’s unit was subsequently awarded the Republic of Vietnam Gallantry Cross with Palm (RVNGC with Palm) Unit Citation during the period he was assigned to the unit.  Additionally, he participated in three campaigns while assigned to Vietnam and is entitled to be awarded three bronze service stars for wear on his already-awarded VSM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH with 1OLC and the CIB has been noted and appears to have merit.  The applicant was first wounded in action against the enemy while serving as an infantryman in an infantry company in Vietnam on 16 May 1969 and there is no evidence in the available records to show that he was awarded either the PH or the CIB for that event.

2.  The applicant was subsequently awarded the PH for wounds received in action against the enemy in Vietnam on 21 June 1969; however, again he was not awarded the CIB.
3.  Accordingly, it would be in the interest of justice at this time to award him both the CIB and the PH with 1OLC, effective 16 May 1969 while serving in the rank and grade of private first class/E-3.

4.  After carefully examining the applicant’s record of service, it was determined that the applicant should have received the AGCM for his service from 24 June 
1968 through 18 August 1970.  This conclusion is based on the fact that the record is void of any derogatory information which would preclude the applicant from being awarded the AGCM and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving the award.

5.  The applicant's not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served.  Therefore, in the interest of justice, the Board determined that this error should be corrected and the applicant should receive the AGCM at this time.

6.  Additionally, the evidence of record also establishes that the applicant is entitled to awards of the RVNGC with Palm Unit Citation and three bronze service stars for wear on his already-awarded VSM.

BOARD VOTE:

___X_____  __X______  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the PH with 1OLC and the CIB effective 16 May 1969 while serving in the rank and grade of private first class/E-3, awarding him the AGCM for the period of 24 June 1968 to 18 August 1970 while serving in the rank of specialist four/E-4, and by authorizing him the RVNGC with Palm Unit Citation and three bronze service stars for wear on his already-awarded VSM.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20090000841



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ABCMR Record of Proceedings (cont)                                         AR20090000841



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