IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20090001412 


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 he be awarded a Purple Heart (first oak leaf cluster).

2.  The applicant states, in effect, that on approximately 1 September 1966, he was wounded when he was in the Republic of Vietnam, from an explosive device.  He states that it was the first time that he was wounded and that he does not believe that he was ever awarded the Purple Heart for that injury.  He states that he was wounded a second time on 13 November 1966 and that he was awarded a Purple Heart for that injury; however, he would like his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) corrected to reflect that he is entitled to a second award of the Purple Heart.

3.  The applicant provides in support of his application a self-authored statement, dated 9 December 2008, explaining why he believes that he is entitled to a second award of the Purple Heart; a copy of a DA Form 2658 (Health Record - Abstract of Service) with various dates; a copy of his Standard Form (SF) 600 (Chronological Record of Medical Care), undated; a copy of Medical Record Progress Notes, dated 11 August 1998; a copy of a notarized letter from an individual attesting to the applicant's injury on or about 1 September 1966, dated 6 June 2008; a copy of his DA Form 8-275-2 (Clinical Record Cover Sheet), dated 27 January 1967; and a copy of his DD Form 214.




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.  On 24 February 1964, the applicant enlisted in the Regular Army in Oakland California, for 3 years, in the pay grade of E-1.  He successfully completed his training in military occupational specialty (MOS) 11B (light weapons infantryman).

3.  He was advanced to the pay grade of E-2 on 24 June 1964 and he was advanced to the pay grade of E-3 on 3 October 1964.  The applicant was transferred to Vietnam on 3 February 1966 and he was assigned to Company C, 2nd Battalion, 8th Cavalry Regiment.

4.  The available records show that on 6 September 1966, the applicant was evacuated to Company A, 15th Medical Battalion in Vietnam after he received a fragment wound in his back from a grenade.  Medical records show that he sustained a fragment wound beneath his right scapula and that a small 2 to 3 centimeter piece of shrapnel was removed.  The wound was infected and there was a moderate amount of purulent drainage from the wound.  He was treated and told to return to the dispensary in 4 days.  

5.  The applicant provided a statement of support from a fellow Soldier.  That individual stated that he witnessed the applicant wounded by a booby-trapped grenade.  The applicant was hit by 3 or 4 pieces of the grenade.  First aid was administered at the time, but the applicant was not medically evacuated until later because they were short of experienced team members and the operation was coming to an end.  

6.  A review of the available records does not show that the applicant was ever awarded the Purple Heart for this injury.

7.  On 26 November 1966, General Orders Number 130 were published awarding the applicant the Purple Heart for fragment wounds received in action to his left shoulder, left hand, and abdomen on 13 November 1966, while he was in Vietnam.

8  The applicant returned to the continental United States on 15 February 1967.

9.  The applicant was honorably released from active duty (REFRAD) on 24 February 1967, under the provisions of Army Regulation 635-200, chapter 5, at the expiration of his term of service and he was transferred to the U.S. Army (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had completed 2 years, 11 months, and 29 days of total active service with 2 days of lost time.

10.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the Parachutist Badge, Expert Marksmanship Qualification Badge (Rifle M-14), Vietnam Service Medal, National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), one Overseas Service Bar, and the Purple Heart.

11.  A review of the Vietnam Casualty Roster does not shows that the applicant was wounded on or about 6 September 1966 as a result of enemy action.

12.  Review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

13.  On 6 May 1967, General Orders Number 2186 were published awarding the applicant the Army Commendation Medal for meritorious service in the Republic of Vietnam from March 1966 through March 1967, while serving in the pay grade of E-3.

14.  On 26 January 1967, General Orders Number 364 were published awarding the applicant the Air Medal for meritorious achievement while participating in aerial flight while in the Republic of Vietnam from 2 March 1966 through 6 November 1966, while serving in the pay grade of E-4.

15.  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 medical personnel, and the medical treatment must have been made a matter of official record.  This regulation further states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

16.  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.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows the campaigns for Vietnam.  During the applicant’s tour in Vietnam he participated in two campaigns:  Vietnam Counteroffensive
(25 December 1965 - 30 June 1966) and Vietnam Counteroffensive Phase II
(1 July 1966 - 31 May 1967).  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

17.  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 document show the unit to which the applicant was assigned was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 9 August 1965 to 19 May 1969 by Department of the Army General Orders (DAGO) Number 59, dated 1969.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he entitled to a second award of the Purple Heart.

2.  While a review of the Vietnam Casualty Roster does not show that he was wounded in action on or about 6 September 1966, the medical evidence of records shows that he was in Vietnam when he was evacuated and medically treated on 6 September 1966 for a fragment wound to his back from a grenade.

3.  He received a Purple Heart for the wound that he received in action on
14 November 1966.  However, there is no evidence that shows that he ever received a Purple Heart for the wound that he incurred on or about 6 September 1966.  It appears that he is entitled to an additional award of the Purple Heart; therefore, his record should be corrected accordingly.

4.  The applicant was awarded the Army Commendation Medal and the Air Medal based on published General Orders.  Therefore, his records should be corrected to show these two awards.

5.  Records show the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in two campaigns while 
serving in the Republic of Vietnam.  Therefore, he is entitled the award of two bronze service stars to be affixed to his previously-awarded Vietnam Service Medal.

6.  Records also show the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure of assignment.  Therefore, he is entitled to correction of his records to show this unit 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 concerned be corrected by:

   a.  deleting from item 24 of his DD Form 214 the Purple Heart and the Vietnam Service Medal;
   
   b.  awarding the applicant the Purple Heart (first oak leaf cluster) for wounds sustained in action on 6 September 1966; and
   
   c.  adding to item 24 of the applicant's DD Form 214 the Purple Heart (first oak leaf cluster), Army Commendation Medal, Air Medal, Vietnam Service Medal with two bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



      ________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)                                         AR20090001412



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ABCMR Record of Proceedings (cont)                                         AR20090001412



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